UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  INDIVIDUALIZATION 
OF  PUNISHMENT 


MODERN   CRIMINAL   SCIENCE   SERIES 

Published   under  the   auspices   of  the   American   Institute   of    Criminal    Law 

and  Criminology 

1.  Modern    Theories    of  Criminality.      By   C.   BERNALDO   DE   QUIROS,   of 
Madrid.     Translated  from  the  Second  Spanish  Edition,  by  Dr.  ALPHONSO  DE 
SALVIO,  Assistant  Professor  of  Romance  Languages  in  Northwestern  University. 
With  an  American  Preface  by  the  Author,  and  an  Introduction  by   W.   W. 
SMiTHERSj  Esq.,  of  Philadelphia,  Secretary  of  the  Comparative  Law  Bureau  of 
the  American  Bar  Association. 

2.  Criminal  Psychology.    By  HANS  GROSS,  Professor  of  Criminal  Law  in 
the  University  of  Graz,  Austria,  Editor  of  the  "  Archives  of  Criminal  Anthro- 
pology and  Criminalistics,"  etc.     Translated  from  the  Fourth  German  edition, 
by  Dr.  HORACE  M.  KALLEN,  Lecturer  in  Philosophy  in  Harvard  University. 
With  an  American  Preface  by  the  Author,  and  an  Introduction  by  JOSEPH 
JASTROW,  Professor  of  Psychology  in  the  University  of  Wisconsin. 

3.  Crime,   Its   Causes   and  Remedies.     By   CESARE    LOMBROSO,    late   Pro- 
fessor of  Psychiatry  and  Legal  Medicine  in  the  University  of  Turin,  author  of 
the  "  Criminal  Man,"  etc.,  Founder  and  Editor  of  the  "  Archives  of  Psychiatry 
and  Penal  Sciences."    Translated  from  the  French  and  German  editions  by  Rev. 
HENRY  P.  HORTON,   M.  A.,  of   Columbia,    Mo.      With    an   Introduction   by 
MAURICE  PARMELEE,  Associate  Professor  of  Sociology  in  the  University  of 
Missouri. 

4.  The     Individualization     of    Punishment.       By     RAYMOND     SALEILLES, 
Professor  of  Comparative  Law  in  the  University  of  Paris.    Translated  from  the 
Second  French  edition,  by  Mrs.  RACHAEL  SZOLD  JASTROW,  of  Madison,  Wis.   With 
an  Introduction  by  ROSCOE  POUND,  Professor  of  Law  in  Harvard  University. 

5.  Criminal  Sociology.     By  ENRICO   FERRI,   Member  of  the  Roman  Bar, 
and  Professor  of  Criminal  Law  and  Procedure  in  the  University  of  Rome,  Editor 
of  the  "  Archives  of  Psychiatry  and  Penal  Sciences,"  the  "  Positivist  School  in 
Penal  Theory  and  Practice,"  etc.    Translated  from  the  Fifth  Italian,  and  Second 
French  edition,  by  JOSEPH  I.  KELLY,  Esq.,  of  Chicago,  formerly  Lecturer  on 
Roman  Law  in  Northwestern  University  and  Dean  of  the  Faculty  of  Law  in  the 
University  of  Louisiana.    With  an  American  Preface  by  the  Author,  and  an  In- 
troduction by  CHARLES  A.  ELLWOOD,  Professor  of  Sociology  in  the  University 
of  Missouri. 

6.  Penal    Philosophy,      By  GABRIEL  TARDE,  Late  Magistrate  in  Picardy, 
Professor  of  Modern  Philosophy  in  the  College  of  France,  and  Lecturer  in  the 
Paris  School  of  Political  Science.    Translated  from  the  Fourth  French  edition,  by 
RAPELJE  Ho  WELL,  Esq.,  of  the  Bar  of  New  York  City.     With  an  Introduction 
by  ROBERT  H.  GAULT,  Assistant  Professor  of  Psychology  in  Northwestern  Uni- 
versity, and  Managing  Editor  of  the  Journal  of  the  Institute. 

7.  Criminality  and  Economic   Conditions.     By  W.  A.  BONGER,  Doctor  in 
Law  of  the  University  of  Amsterdam.    Translated  from  the  French  by  HENRY  P. 
HORTON,  M.  A.,  of  Ithaca,  N.  Y.,  and  VICTOR  VON  BOROSINI,  of  Chicago,  111. 

8.  Criminology.    By  RAFPAELLE  GAROPALO,  former  President  of  the  Court  of 
Appeals  of  Naples.     Translated  from  the  First  Italian  and  the  Fifth  French 
edition,  by  ROBERT  W.  MILLAR,  Esq.,  of  Chicago,  Lecturer  in  Northwestern 
University  Law  School. 

9.  Crime    and   Its  Repression.    By  GusTAV  AscHAPPENBURQ,  Professor  of 
Psychiatry  in  the  Academy  of  Practical  Medicine  at  Cologne,  Editor  of  the 
"  Monthly  Journal  of  Criminal  Psychology  and  Criminal  Law  Reform."     Trans- 
lated from  the  Second  German  edition  by  ADALBERT  ALBRECHT,  of  South  Easton> 
Mass. 


THE  MODERN  CRIMINAL  SCIENCE  SERIES 

Published  under  the  Auspices  of 
THE  AMERICAN  INSTITUTE  OF  CRIMINAL  LAW  AND  CRIMINOLOGY 


The  Individualization  of 
Punishment 

BY  RAYMOND   SALEILLES 

Professor  of  Comparative  Law  in  the  University  of  Paris 
and  in  the  College  of  Social  Science 

WITH  AN  INTRODUCTION  BY  GABRIEL  TARDE 

Late  Magistrate  in  Picardu  and  Professor  of  Philosophy 
in  the  College  of  France 


Translated  from  the  second  French  edition  by 
RACHEL  SZOLD  JASTROW 

With  an  Introduction  by 

ROSCOE  POUND 

Professor  of  Law  in  Harvard  University 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 
1911 


•p* 

Sa 


COPYRIGHT,  1911, 
BY  LITTLE,  BROWN,  AND  COMPANY. 


All  rights  reserved 


GENERAL  INTRODUCTION  TO  THE 
MODERN  CRIMINAL  SCIENCE  SERIES. 

AT  the  National  Conference  of  Criminal  Law  and  Crim- 
inology, held  in  Chicago,  at  Northwestern  University,  in 
June,  1909,  the  American  Institute  of  Criminal  Law  and 
Criminology  was  organized;  and,  as  a  part  of  its  work,  the 
following  resolution  was  passed: 

"  Whereas,  it  is  exceedingly  desirable  that  important 
treatises  on  criminology  in  foreign  languages  be  made  readily 
accessible  in  the  English  language,  Resolved,  that  the  presi- 
dent appoint  a  committee  of  five  with  power  to  select  such 
treatises  as  in  their  judgment  should  be  translated,  and  to 
arrange  for  their  publication." 

The  Committee  appointed  under  this  Resolution  has  made 
careful  investigation  of  the  literature  of  the  subject,  and  has 
consulted  by  frequent  correspondence.  It  has  selected 
several  works  from  among  the  mass  of  material.  It  has 
arranged  with  publisher,  with  authors,  and  with  transla- 
tors, for  the  immediate  undertaking  and  rapid  progress  of 
the  task.  It  realizes  the  necessity  of  educating  the  profes- 
sions and  the  public  by  the  wide  diffusion  of  information  on 
this  subject.  It  desires  here  to  explain  the  considerations 
which  have  moved  it  in  seeking  to  select  the  treatises  best 
adapted  to  the  purpose. 

For  the  community  at  large,  it  is  important  to  recognize 
that  criminal  science  is  a  larger  thing  than  criminal  law. 
The  legal  profession  in  particular  has  a  duty  to  familiarize 
itself  with  the  principles  of  that  science,  as  the  sole  means 
for  intelligent  and  systematic  improvement  of  the  criminal 
law. 


vi  GENERAL  INTRODUCTION 

Two  centuries  ago,  while  modern  medical  science  was  still 
young,  medical  practitioners  proceeded  upon  two  general 
assumptions:  one  as  to  the  cause  of  disease,  the  other  as  to 
its  treatment.  As  to  the  cause  of  disease,  —  disease  was  sent 
by  the  inscrutable  will  of  God.  No  man  could  fathom  that 
will,  nor  its  arbitrary  operation.  As  to  the  treatment  of 
disease,  there  were  believed  to  be  a  few  remedial  agents  of 
universal  efficacy.  Calomel  and  blood-letting,  for  example, 
were  two  of  the  principal  ones.  A  larger  or  smaller  dose  of 
calomel,  a  greater  or  less  quantity  of  bloodletting,  —  this 
blindly  indiscriminate  mode  of  treatment  was  regarded  as 
orthodox  for  all  common  varieties  of  ailment.  And  so  his 
calomel  pill  and  his  bloodletting  lancet  were  carried  every- 
where with  him  by  the  doctor. 

Nowadays,  all  this  is  past,  in  medical  science.  As  to  the 
causes  of  disease,  we  know  that  they  are  facts  of  nature, 
—  various,  but  distinguishable  by  diagnosis  and  research, 
and  more  or  less  capable  of  prevention  or  control  or  counter- 
action. As  to  the  treatment,  we  now  know  that  there  are 
various  specific  modes  of  treatment  for  specific  causes  or 
symptoms,  and  that  the  treatment  must  be  adapted  to  the 
cause.  In  short,  the  individualization  of  disease,  in  cause  and 
in  treatment,  is  the  dominant  truth  of  modern  medical  science. 

The  same  truth  is  now  known  about  crime;  but  the  under- 
standing and  the  application  of  it  are  just  opening  upon  us. 
The  old  and  still  dominant  thought  is,  as  to  cause,  that  a 
crime  is  caused  by  the  inscrutable  moral  free  will  of  the  human 
being,  doing  or  not  doing  the  crime,  just  as  it  pleases;  abso- 
lutely free  in  advance,  at  any  moment  of  time,  to  choose  or 
not  to  choose  the  criminal  act,  and  therefore  in  itself  the 
sole  and  ultimate  cause  of  crime.  As  to  treatment,  there 
still  are  just  two  traditional  measures,  used  in  varying  doses 
for  all  kinds  of  crime  and  all  kinds  of  persons,  —  jail,  or  a 
fine  (for  death  is  now  employed  in  rare  cases  only).  But 
modern  science,  here  as  in  medicine,  recognizes  that  crime 


GENERAL  INTRODUCTION  vii 

also  (like  disease)  has  natural  causes.  It  need  not  be  asserted 
for  one  moment  that  crime  is  a  disease.  But  it  does  have 
natural  causes,  —  that  is,  circumstances  which  work  to  pro- 
duce it  in  a  given  case.  And  as  to  treatment,  modern  science 
recognizes  that  penal  or  remedial  treatment  cannot  possibly 
be  indiscriminate  and  machine-like,  but  must  be  adapted 
to  the  causes,  and  to  the  man  as  affected  by  those  causes. 
Common  sense  and  logic  alike  require,  inevitably,  that  the 
moment  we  predicate  a  specific  cause  for  an  undesirable 
effect,  the  remedial  treatment  must  be  specifically  adapted 
to  that  cause. 

Thus  the  great  truth  of  the  present  and  the  future,  for 
criminal  science,  is  the  individualization  of  penal  treatment, 
—  for  that  man,  and  for  the  cause  of  that  man's  crime. 

Now  this  truth  opens  up  a  vast  field  for  re-examination. 
It  means  that  we  must  study  all  the  possible  data  that  can 
be  causes  of  crime,  —  the  man's  heredity,  the  man's  physi- 
cal and  moral  make-up,  his  emotional  temperament,  the 
surroundings  of  his  youth,  his  present  home,  and  other 
conditions,  —  all  the  influencing  circumstances.  And  it 
means  that  the  effect  of  different  methods  of  treatment,  old 
or  new,  for  different  kinds  of  men  and  of  causes,  must  be 
studied,  experimented,  and  compared.  Only  in  this  way 
can  accurate  knowledge  be  reached,  and  new  efficient  meas- 
ures be  adopted. 

All  this  has  been  going  on  in  Europe  for  forty  years  past, 
and  in  limited  fields  in  this  country.  All  the  branches  of 
science  that  can  help  have  been  working,  —  anthropology, 
medicine,  psychology,  economics,  sociology,  philanthropy, 
penology.  The  law  alone  has  abstained.  The  science  of 
law  is  the  one  to  be  served  by  all  this.  But  the  public  in  gen- 
eral and  the  legal  profession  in  particular  have  remained 
either  ignorant  of  the  entire  subject  or  indifferent  to  the 
entire  scientific  movement.  And  this  ignorance  or  indiffer- 
ence has  blocked  the  way  to  progress  in  administration. 


viii  GENERAL  INTRODUCTION 

The  Institute  therefore  takes  upon  itself,  as  one  of  its  aims, 
to  inculcate  the  study  of  modern  criminal  science,  as  a  press- 
ing duty  for  the  legal  profession  and  for  the  thoughtful 
community  at  large.  One  of  its  principal  modes  of  stimulat- 
ing and  aiding  this  study  is  to  make  available  in  the  English 
language  the  most  useful  treatises  now  extant  in  the  Con- 
tinental languages.  Our  country  has  started  late.  There 
is  much  to  catch  up  with,  in  the  results  reached  elsewhere. 
We  shall,  to  be  sure,  profit  by  the  long  period  of  argument 
and  theorizing  and  experimentation  which  European  thinkers 
and  workers  have  passed  through.  But  to  reap  that  profit, 
the  results  of  their  experience  must  be  made  accessible  in 
the  English  language. 

The  effort,  in  selecting  this  series  of  translations,  has  been 
to  choose  those  works  which  best  represent  the  various  schools 
of  thought  in  criminal  science,  the  general  results  reached, 
the  points  of  contact  or  of  controversy,  and  the  contrasts  of 
method  —  having  always  in  view  that  class  of  works  which 
have  a  more  than  local  value  and  could  best  be  serviceable 
to  criminal  science  in  our  country.  As  the  science  has  vari- 
ous aspects  and  emphases  —  the  anthropological,  psychologi- 
cal, sociological,  legal,  statistical,  economic,  pathological  — 
due  regard  was  paid,  in  the  selection,  to  a  representation  of 
all  these  aspects.  And  as  the  several  Continental  countries 
have  contributed  in  different  ways  to  these  various  aspects,  — 
France,  Germany,  Italy,  most  abundantly,  but  the  others 
each  its  share,  —  the  effort  was  made  also  to  recognize  the 
different  contributions  as  far  as  feasible. 

The  selection  made  by  the  Committee,  then,  represents 
its  judgment  of  the  works  that  are  most  useful  and  most 
instructive  for  the  purpose  of  translation.  It  is  its  conviction 
that  this  Series,  when  completed,  will  furnish  the  American 
student  of  criminal  science  a  systematic  and  sufficient  ac- 
quaintance with  the  controlling  doctrines  and  methods 
that  now  hold  the  stage  of  thought  in  Continental  Europe. 


GENERAL  INTRODUCTION  be 

Which  of  the  various  principles  and  methods  will  prove 
best  adapted  to  help  our  problems  can  only  be  told  after 
our  students  and  workers  have  tested  them  in  our  own  ex- 
perience. But  it  is  certain  that  we  must  first  acquaint  our- 
selves with  these  results  of  a  generation  of  European  thought. 
In  closing,  the  Committee  thinks  it  desirable  to  refer  the 
members  of  the  Institute,  for  purposes  of  further  investiga- 
tion of  the  literature,  to  the  "  Preliminary  Bibliography  of 
Modern  Criminal  Law  and  Criminology  "  (Bulletin  No.  1 
of  the  Gary  Library  of  Law  of  Northwestern  University), 
already  issued  to  members  of  the  Conference.  The  Com- 
mittee believes  that  some  of  the  Anglo-American  works 
listed  therein  will  be  found  useful. 

COMMITTEE  ON  TRANSLATIONS. 
Chairman,  JOHN  H.  WIGMOBE, 

Professor  of  Law  in  Northwestern  University,  Chicago. 

ERNST  FREUND, 

Professor  of  Law  in  the  University  of  Chicago. 

MAURICE  PARMELEE, 

Professor    of    Sociology    in    the    State    University    of 
Missouri. 

ROSCOE  POUND, 

Professor  of  Law  in  Harvard  University. 
ROBERT  B.  SCOTT, 

Formerly    Professor    of   Political    Science  in  the   State 
University  of  Wisconsin. 

WM.  W.  SMITHERS, 

Secretary    of    the    Comparative    Law    Bureau     of    the 
American  Bar  Association,  Philadelphia,  Pa. 


INTRODUCTION  TO  THE  ENGLISH 
VERSION 

WHEN  Sir  James  Stephen  spoke,  not  without  praise,  of  the 
absence  of  general  theories  good  or  bad  which  distinguished 
the  law  of  England,  he  stated  a  half -truth  only.  It  is  true 
that  in  Anglo-American  law,  more  than  in  other  systems, 
juristic  theories  come  after  lawyer  and  judge  have  dealt 
with  concrete  cases  and  have  in  some  measure  learned  how 
to  dispose  of  them.  But  it  is  also  true  that  such  theories 
go  before  our  law-making,  as  they  precede  law-making  else- 
where. They  are  developed  consciously  or  subconsciously 
before  the  legislator,  or  under  our  system  of  case  law  the 
judge,  formulates  the  rules  by  which  future  causes  are  to  be 
governed.  Hence  we  have  a  general  theory  of  crime  and 
of  punishment  in  our  Anglo-American  common  law  and  in 
our  penal  codes;  and,  although  we  are  coming  to  have  legis- 
lation here  and  there  proceeding  upon  other  theories,  the 
latter  fits  with  difficulty  into  a  system  of  legislation  and  of 
judicial  decision  in  which  that  general  theory  is  consistently 
developed.  Moreover,  thinking  men  have  agreed  long  ago 
that  it  is  not  a  good  one.  For  the  theory  of  our  common 
law  and  of  our  penal  codes  is  the  classical  theory.  This 
theory,  intrenched  in  our  bills  of  rights  and  in  common-law 
juristic  thinking,  as  well  as  formulated  in  our  penal  codes 
and  the  decisions  construing  them,  is  to-day  a  formidable 
obstacle  in  the  way  of  modern  legislation,  as  the  conflict 
over  construction  of  statutes  requiring  action  at  one's  peril, 
the  fate  of  the  statute  of  Washington  as  to  the  defense  of 


Xii     INTRODUCTION   TO   THE   ENGLISH   VERSION 

insanity,  and  the  constitutional  difficulties  encountered  by 
probation  laws  abundantly  bear  witness.  Not  many  years 
ago  a  learned  Supreme  Court  released  a  child  from  a  reform- 
atory on  the  ground  that  a  reformatory  was  a  prison,  that 
commitment  thereto  was  necessarily  punishment  for  crime, 
and  hence  that  such  commitment  could  be  warranted  only 
by  criminal  proceedings  of  a  formal  type,  conducted  with 
due  regard  to  constitutional  safeguards.  The  rise  of  Juve- 
nile Courts,  justified  to  the  lawyer  by  the  fortunate  historical 
circumstance  of  the  jurisdiction  of  the  Chancellor  over  infants, 
has  now  accustomed  us  to  courts  of  criminal  equity  for  the 
youthful  offender;  but  attempts  to  introduce  any  system  of 
individualization  for  the  adult  will  have  to  wrestle  a  long 
time  with  constitutional  provisions. 

Professor  Saleilles'  account  of  the  relation  of  the  classical 
theory  to  French  penal  legislation  should  be  of  especial 
interest  in  America.  Substantially  all  that  he  says  as  to 
the  Penal  Codes  of  1791  and  1810  applies  equally  to  our 
criminal  legislation.  For  the  New  York  legislators  had  the 
French  Code  of  1810  before  them.  Livingston's  discussions, 
based  on  French  sources,  were  known  to  them,  and  the  theories 
on  which  the  French  legislation  proceeded  were  familiar  and 
congenial.  It  follows  that  the  American  criminalist  has  little 
to  add.  Perhaps  two  points  deserve  notice.  In  the  first 
place,  the  desire  to  preclude  arbitrary  judicial  action  was 
especially  strong  in  America  because  in  the  hands  of  ap- 
pointees of  the  Crown  the  criminal  law  had  been  found  an 
efficient  engine  of  political  and  religious  persecution.  Un- 
happily, our  law  as  to  misdemeanors  had  developed  in  the 
court  of  Star  Chamber,  and  the  contests  between  the  common- 
law  courts  and  the  Crown  in  the  seventeenth  century  had 
convinced  the  next  age  that  there  was  no  safety  except  in 
hard  and  fast  legal  formulas  applied  mechanically.  So  sure 
of  this  were  the  lawyer  and  the  publicist  of  the  end  of  the 
eighteenth  century,  that  in  our  bills  of  rights  they  gave  us 
political  and  philosophical  charts,  to  which  all  future  govern- 
mental action  must  be  made  to  conform,  and  they  believed 
them  to  be  merely  declaratory  of  doctrines  inhering  in  the 


INTRODUCTION   TO   THE   ENGLISH   VERSION     xiii 

very  idea  of  justice.  The  popularity  of  the  common  law  in 
America  did  not  extend  to  the  substantive  part  of  the  crim- 
inal law.  Very  early  by  legislation  or  judicial  decision  our 
commonwealths  began  to  adopt  the  doctrine  that  there  must 
be  chapter  and  verse  of  the  written  law  behind  every  punish- 
ment. Thus  the  unfortunate  political  conditions  that  have 
made  the  Star  Chamber  a  synonym  for  arbitrary  and  op- 
pressive administration  of  punitive  justice  will  long  stand  in 
the  way  of  a  revived  "court  of  criminal  equity."  But  in 
France  also  the  classical  theory  was  a  reaction  against  abuse 
of  absolute  power.  In  consequence  the  American  reader 
will  find  the  author  in  sympathy  with  the  views  which  have 
come  to  us  through  our  legal  history.  For  our  experience 
has  not  been  unique.  It  is  an  inherent  difficulty  in  the  ad- 
ministration of  punitive  justice  that  criminal  law  has  a  much 
closer  connection  with  politics  than  has  the  law  of  civil  relations. 
There  is  no  great  danger  of  oppression  through  civil  litigation. 
There  is  constant  fear  of  oppression  through  the  criminal 
law.  Not  only  is  one  class  suspicious  of  attempts  by  another 
to  force  its  ideas  upon  the  community  under  penalty  of  prose- 
cution, but  the  power  of  a  majority  to  visit  with  punishment 
practices  which  a  strong  minority  consider  in  no  wise  ob- 
jectionable is  liable  to  abuse  and,  whether  rightly  or  wrongly 
used,  puts  a  strain  upon  criminal  law  and  administration. 
All  criminalists  must  reckon  with  this  difficulty.  Perhaps 
American  lawyers  insist  upon  it  unduly,  to  the  exclusion  of 
other  points  of  no  less  importance.  But  revolutionary  France 
had  the  same  ideas,  and  by  consequence  the  author  canvasses 
the  very  objections  and  discusses  the  very  requirements  of 
legal  policy  which  we  also  must  consider. 

Secondly,  we  must  take  account  of  the  part  played  by 
Puritanism  in  the  development  of  Anglo-American  law. 
The  relation  of  Puritanism  to  the  common  law  is  quite  as 
important  a  part  of  the  philosophical  history  of  our  legal 
system  as  the  relation  of  Stoic  philosophy  to  Roman  law  is 
part  of  the  history  of  that  system.  In  each  case  we  have  to 
do  with  the  dominant  fashion  of  thinking  upon  fundamental 
questions  during  a  critical  period  of  growth.  The  two  grow- 


xiv     INTRODUCTION   TO   THE   ENGLISH   VERSION 

ing  periods  of  our  legal  system,  the  two  periods  in  which 
the  rules  and  doctrines  that  obtain  to-day  were  formative, 
were  the  classical  common-law  period,  the  end  of  the  six- 
teenth and  beginning  of  the  seventeenth  century,  and  the 
American  common-law  period,  the  period  of  legal  develop- 
ment in  America  that  comes  to  an  end  after  the  Civil  War. 
But  the  age  of  Coke  was  the  age  of  the  Puritan  in  England, 
and  the  period  that  ends  with  our  civil  war  was  the  age  of 
the  Puritan  in  America.  Indeed,  he  had  his  own  way  in 
America.  Here  he  was  in  the  majority  and  made  institutions 
to  his  own  liking.  It  is  no  accident,  therefore,  that  common- 
law  principles  have  often  attained  their  most  complete 
logical  development  in  America.  Hence  the  contribution 
of  individualist  religious  dogma  to  the  criminal  law  was  much 
greater  in  America  than  in  France.  The  individualization 
in  practice  which  was  permitted  by  the  canon-law  concep- 
tion of  searching  and  disciplining  the  conscience  was  wholly 
alien  to  the  Puritan.  For  above  all  things  he  was  jealous 
of  the  magistrate.  If  moral  questions  were  to  be  dealt  with 
as  concrete  cases  to  be  individualized  in  their  solution,  sub- 
ordination of  those  whose  cases  were  decided  to  those  who 
had  the  power  of  weighing  the  circumstances  of  the  concrete 
case  and  individualizing  the  principle  to  meet  that  case  might 
result.  His  idea  of  "consociation  but  not  subordination" 
demanded  that  a  fixed,  absolute,  universal  rule,  which  the 
individual  had  contracted  to  abide,  be  resorted  to.  "No- 
where," says  Morley,  "has  Puritanism  done  us  more  harm 
than  hi  thus  leading  us  to  take  all  breadth  and  color  and 
diversity  and  fine  discrimination  out  of  our  judgments  of 
men,  reducing  them  to  thin,  narrow,  and  superficial  pro- 
nouncements upon  the  letter  of  their  morality  or  the  precise 
conformity  of  their  opinions  to  accepted  standards  of  truth." 
But  this  is  exactly  the  method  of  the  classical  theory  in 
criminal  law.  Indeed  our  common-law  jurists  have  taken 
it  to  be  fundamental  in  legal  theory.  Thus,  Amos  says:  "The 
same  penalty  for  a  broken  law  is  exacted  from  persons  of  an 
indefinite  number  of  shades  of  moral  guilt,  from  persons  of 
high  education  and  culture,  well  acquainted  with  the  pro- 


INTRODUCTION  TO   THE   ENGLISH   VERSION     xv 

visions  of  the  law  they  despise,  and  from  the  humblest  and 
most  illiterate  persons  in  the  country."  And,  be  it  noted, 
he  states  this  as  a  matter  of  course,  with  no  hint  that  we 
may  attain  anything  better.  Thus  political  events  and  the 
Puritanism  of  nineteenth-century  America  tightened  the 
hold  upon  us  of  a  theory  which  on  other  grounds  for  a  time 
was  accepted  everywhere.  For  to  find  a  proper  mean  between 
a  system  of  hard  and  fast  rules  and  one  of  completely  indi- 
vidualized justice  is  one  of  the  inherent  difficulties  of  all 
administration  of  justice  according  to  law.  And  in  the 
movement  to  and  fro  from  the  over-arbitrary  to  the  over- 
mechanical,  the  eighteenth  and  nineteenth  centuries  stood 
for  the  latter. 

More  recently  throughout  the  world  there  has  come  to  be 
a  reaction  against  administration  of  justice  solely  by  abstract 
formula.  In  France  it  appears  as  a  newer  and  freer  method 
of  interpreting  the  codes.  In  Germany  it  takes  the  form  of 
agitation  for  "freie  Rechtsfindung"  In  England  it  is  manifest 
in  Lord  Esher's  farewell  speech,  in  which  he  thanked  God 
that  English  law  was  not  a  science,  in  Sir  John  Hollams's 
protest  against  treating  the  private  controversy  between 
John  Doe  and  Richard  Roe,  not  as  a  cause  in  which  justice 
is  to  be  done  primarily,  but  primarily  as  a  means  by  which 
to  settle  the  law  for  other  litigants,  and  in  the  wider  discretion 
which  is  now  accorded  to  the  bench  in  order  to  give  fuller 
power  of  doing  justice.  In  the  United  States  it  is  manifest 
in  a  tendency  toward  extra-legal  attainment  of  just  results 
while  preserving  the  form  of  the  law.  To  a  large  and  appar- 
ently growing  extent  the  actual  practice  of  our  application 
of  the  law  is  that  jurors  or  courts  take  the  rules  of  law  as  a 
general  guide,  determine  what  the  equities  of  the  cause  de- 
mand and  contrive  to  find  a  verdict  or  render  a  judgment 
accordingly,  wrenching  the  law  no  more  than  is  necessary. 
Occasionally  we  find  a  judge  owning  frankly  that  he  looks 
chiefly  at  the  ethical  situation  inter  paries  and  does  not  allow 
the  law  to  interfere  therewith  more  than  is  inevitable.  Many 
appellate  courts  are  suspected  of  ascertaining  what  the  broad 
equities  of  a  controversy  require  and  justifying  a  result  in 


xvi     INTRODUCTION   TO   THE   ENGLISH   VERSION 

accord  therewith  by  the  elaborate  ritual  of  a  written  opinion. 
Complaint  of  this  is  not  uncommon  wherever  lawyers  discuss 
recent  decisions  among  themselves,  and  at  least  one  bar 
association  has  made  it  the  subject  of  a  resolution.  The 
movement  for  individualization  in  criminal  law  is  but  a  phase 
of  this  general  movement  for  individualizing  the  application 
of  all  legal  rules. 

The  chief  reliance  of  our  system  toward  individualizing 
the  application  of  law  is  the  power  of  juries  to  render  general 
verdicts,  the  power  to  find  the  facts  in  such  a  way  as  to 
compel  a  different  result  from  that  which  the  legal  rule 
strictly  applied  would  require.  Probably  this  power  alone 
has  made  the  common  law  of  master  and  servant  tolerable 
in  American  jurisdictions  in  the  twentieth  century.  Yet 
exercise  of  this  power,  with  respect  to  which,  as  Lord  Coke 
expressed  it,  the  jurors  are  chancellors,  has  made  the  jury 
a  most  unsatisfactory  tribunal  in  many  classes  of  cases,  and, 
in  view  of  the  practice  of  repeated  new  trials,  which  this  power 
has  in  large  part  occasioned,  a  most  expensive  one.  In  crim- 
inal causes  this  is  even  more  marked.  Exercised  in  homicide 
cases,  it  led  to  the  situation  Mark  Twain  satirized  when  he 
called  upon  the  legislature  to  make  insanity  a  crime.  In 
order  to  be  able  to  procure  convictions  at  all  in  cases  of  homi- 
cide, many  of  our  jurisdictions  leave  the  penalty  to  the  jury. 
The  penal  code  of  California  has  such  a  provision,  and  a 
collection  of  criminal  cases  published  recently  by  the  chief 
of  police  of  San  Francisco  enables  us  to  see  how  the  power 
has  been  exercised.  As  one  studies  the  cases  he  can  see  to 
a  certain  degree  that  broad  lines  were  drawn  by  the  juries, 
even  if  crudely.  But  one  of  these  lines  which  is  most  ap- 
parent is  between  picturesque  murder,  however  brutal, 
and  brutal  murder  without  the  picturesque  element.  Then, 
too,  the  cases  show  that  the  choice  of  penalty  depends  very 
largely  on  the  temper  of  particular  juries.  For  example, 
Goldensen,  a  boy  of  19,  who  suddenly  killed  a  girl  of  13,  was 
hung,  while  Hoff,  who  brutally  murdered  a  woman  who  had 
employed  him,  having  been  sentenced  to  be  hung  on  the 
first  trial,  on  a  second  trial,  granted  for  an  error  of  procedure, 


INTRODUCTION   TO   THE   ENGLISH   VERSION      xvii 

was  imprisoned  for  life.  In  the  cases  of  murder  for  gain  or 
incident  to  robbery  this  is  even  more  apparent.  The  so- 
called  "  gas-pipe  "  murderers,  who  were  robbers,  were  hung. 
So  was  Kovalev,  an  escaped  Siberian  convict,  who  murdered 
for  gain.  But  Sontag  and  Evans,  professional  bandits,  who 
had  committed  a  long  series  of  train  robberies,  had  killed 
many  and  shot  many  more,  were  imprisoned  for  life.  So  in 
the  case  of  Dorsey,  a  stage  robber  and  murderer.  Experience 
elsewhere  has  been  the  same.  Obviously  the  crude  individual- 
ization  achieved  by  our  juries,  and  especially  by  leaving 
the  assessment  of  penalties  to  trial  juries,  involves  quite 
as  much  inequality  and  injustice  as  the  mechanical  appli- 
cation of  the  law  by  a  magistrate.  Unchecked  jury  dis- 
cretion upon  the  whole  is  worse  than  the  unchecked 
magisterial  discretion  from  which  the  classical  school  sought 
to  deliver  us. 

What  we  have  to  achieve,  then,  in  modern  criminal  law 
is  a  system  of  individualization,  and  that  this  is  possible  we 
have  the  warrant  of  the  experience  of  courts  of  equity.  In 
equity  we  have  a  system  of  legal  individualization.  Every 
rule  has  a  margin,  more  or  less  wide,  which  admits  of  discretion 
in  its  application  to  individual  causes.  As  Lord  Eldon  put 
it,  the  doctrines  of  equity  "ought  to  be  as  well-settled  and 
made  as  uniform  almost  as  those  of  the  common  law,  laying 
down  fixed  principles  but  taking  care  that  they  are  to  be 
applied  according  to  the  circumstances  of  each  case."  In 
equity,  too,  we  have  a  system  of  judicial  individualization. 
There  is  not,  as  at  law,  a  stereotyped  form  of  judgment  which 
must  needs  be  rendered  in  every  case;  but  the  court  has  wide 
powers  of  adapting  the  decree  to  the  concrete  cause  and  of 
doing  what  will  most  subserve  the  ends  of  justice  therein. 
For  the  individualization  in  equity  in  our  system  is  in  its 
administration  rather  than  in  its  substance,  except  as  its 
substance  allows  this.  That  rights  of  property,  which  are 
constantly  involved  in  our  equity  litigation,  have  not  suffered 
in  any  wise  under  such  a  regime,  argues  that  rights  of  personal 
liberty,  of  which  we  are  at  least  no  less  tender,  do  not  require 
hard  and  fast  formulas  administered  mechanically  in  order 


xviii    INTRODUCTION    TO   THE   ENGLISH   VERSION 

to  receive  full  protection.  We  must  not  overlook  that  to-day 
publicity  is  the  most  effective  check  and  balance  upon  the 
magistrate.  There  is  much  less  need  of  the  elaborate  tying- 
down  to  which  our  fathers  subjected  him. 

It  will  be  urged  that  there  are  constitutional  provisions 
which  preclude  any  system  of  legal  or  judicial  individualiza- 
tion  in  criminal  law  in  this  country.  But  Professor  Saleilles 
seeks  to  guard  the  very  interests  which  our  bills  of  rights  are 
designed  to  maintain.  Hence  in  large  part  his  discussion  of 
the  means  of  attaining  a  system  of  individualization  are 
applicable  to  us  also.  Moreover,  "unconstitutional"  is 
ceasing  to  be  a  word  to  conjure  with.  Not  long  ago  we  were 
wont  to  say  "unconstitutional"  as  Mr.  Podsnap  said  "not 
English."  To-day  we  are  not  so  sure  that  the  end  of  the 
eighteenth  century  spoke  the  last  word  on  all  fundamental 
questions  of  our  polity.  Where  but  a  short  time  since  it  was 
a  commonplace  to  say  that  amendments  of  the  federal  con- 
stitution came  only  through  civil  war,  we  now  contemplate 
complacently  speedy  and  peaceful  alterations  therein  without 
any  pressing  exigency.  As  to  State  constitutions,  which  are 
chiefly  involved,  we  are  likely  to  see  change  become  quite 
easy  enough  in  the  near  future  when  there  is  anything  which 
reasonably  demands  it. 

With  respect  to  the  author,  it  should  be  noted  that  he  is 
primarily  a  lawyer,  writing  from  a  lawyer's  standpoint  and 
appreciating,  as  sociologists  and  lay  criminalists  do  not  at  all 
times  appreciate,  the  purely  legal  problems  of  which  the  lawyer 
is  so  acutely  aware.  As  professor  in  the  Faculty  of  Law  of 
Dijon  and  afterwards  in  the  Faculty  of  Law  of  the  University 
of  Paris,  his  chief  labors  have  been  in  the  field  of  comparative 
law,  in  which  he  has  published,  among  others,  the  following 
important  works:  fitude  sur  les  sources  de  1'obligation  dans 
le  pro  jet  de  code  civil  all  em  a  ml  (1889);  Du  refus  de  paiement 
pour  inexecution  de  contrat;  Etude  du  droit  compare 
(1893);  Etude  sur  la  theorie  generate  des  obligations  dans 
la  seconde  redaction  du  projet  de  code  civil  allemand  (1895, 
2d  ed.  1901);  Les  accidents  du  travail  et  la  responsabilite 
civile  (1897);  De  la  declaration  de  volonte  (1901);  De  la 


INTRODUCTION   TO   THE   ENGLISH   VERSION     xix 

possession  des  meubles;  Etude  de  droit  allemand  et  de  droit 
frangais  (1907).  As  to  his  sociological  teaching  at  the  Col- 
lege libre  des  Sciences  sociales,  it  will  be  enough  to  refer  to 
the  appreciation  by  M.  Tarde  in  the  preface  to  the  first 
edition  of  the  present  work. 

ROSCOE  POUND. 

HARVARD  LAW  SCHOOL. 


AUTHOR'S   PREFACE   TO  THE   SECOND 
EDITION 

THE  first  edition  of  this  essay  in  criminal  economics  having 
been  exhausted,  I  was  requested  to  prepare  a  second.  It 
was  difficult  to  resist  so  flattering  a  demand.  The  text 
needed  thorough  revision;  and  notes  and  a  considerable 
bibliography  were  required  to  place  the  work  in  line  with 
the  legislative  reforms  of  the  past  decade,  as  well  as  with 
the  movements  of  thought  in  legal  and  sociological  literature 
to  which  congresses  devoted  to  criminology  and  related 
disciplines  have  given  expression.  I  found  it  difficult  to 
take  up  the  revision,  inasmuch  as,  for  the  past  ten  years, 
I  have  transferred  my  teaching  from  criminal  to  civil  law, 
and  more  particularly,  to  comparative  civil  law.  It  has 
thus  been  impossible  for  me  to  follow  so  carefully  as  formerly 
the  evolution  of  ideas  and  systems,  or  to  digest  the  liter- 
ature that  has  accumulated  in  this  field.  The  state  of  my 
health  has  also  required  urgent  husbanding  of  my  resources 
and  an  avoidance  of  over-exertion.  I  therefore  decided  upon 
a  compromise. 

So  far  as  concerned  the  field  of  criminal  law,  it  seemed 
to  me  that  this  book,  however  inadequate,  sufficiently  well 
represented  the  initial  stage  of  a  movement  that  has  left 
its  mark  upon  the  history  of  opinion.  It  appeared  at  a  time 
when  jurists  were  confronted,  on  the  one  hand,  by  unprofit- 
able essays  in  the  field  of  abstract  law,  and,  on  the  other, 


xxii  PREFACE  TO  SECOND  EDITION 

by  dangers  threatened  by  reformers,  ready,  in  their  dis- 
regard of  the  judicial  attitude,  to  replace  law  by  sociology. 
They  thus  attempted  to  establish  a  "middle  ground,"  in 
which  effort  they  may  be  said  to  have  achieved  creditable 
success. 

This  new  spirit  found  expression  in  recent  legislative  re- 
forms and  support  in  congresses  of  criminology,  but  it  was 
left  for  the  initiative  of  medical  associations  (such  as  that 
of  Geneva,  1907)  and  the  contributions  of  eminent  scholars 
(such  as  Dr.  Grasset  of  the  University  of  Montpellier)  to 
bring  about  a  more  intimate  affiliation  between  law  and 
anthropology,  and  between  law  and  sociology.1 

Parallel  with  this  advance,  the  Italian  school,  at  least 
in  regard  to  its  more  extreme  tenets,  became  scientifically 
discredited.  The  demands  of  law  and  order  and  security 
gained  ground.  Even  in  the  radical  socialistic  position  the 
conception  of  law  encroached  upon  the  merely  empirical 
attitude  towards  social  realities  as  accidents,  or  as  responses 
to  the  crude  demands  of  impulse.  There  was  a  mutual 
tendency  for  the  law  to  consider  social  facts,  and  for  the 
facts  to  fall  in  with  the  conventions  of  the  law.  Nowhere 
does  this  tendency  appear  so  convincingly  as  in  criminal  law. 

The  views  expressed  in  this  book  were  first  formulated 
in  connection  with  a  popular  course  which  I  conducted  at 
the  College  of  Social  Sciences  ;  they  record  the  initial 
stages  of  a  movement  that  has  since  then  developed  to  a  not- 
able position.  To  convey  an  exact  impression  of  the  present 
status  of  the  subject  and  to  indicate  in  detail  the  altered 
developments  of  recent  origin  would  involve  the  preparation 


1  See  certain  characteristic  passages,  particularly  the  fourth  lecture,  in 
"Les  Psychonevroses  et  leur  traitement  moral,"  by  Dr.  Dubois,  professor  in 
the  University  of  Berne  (Paris,  Masson).  [English  translation:  "The  Psychic 
Treatment  of  Nervous  Disorders."  Funk  &  Wagnalls  Co.,  1908.] 


PREFACE  TO  SECOND  EDITION  xxiii 

of  an  entirely  new  book.  This  is  not  what  I  was  asked  to 
do.  I  decided  to  retain  the  chapters  which  had  their  initia- 
tive ten  years  ago  and  to  look  upon  them  somewhat  as  an 
expression  of  the  period,  as  reflecting  a  phase  of  legal  thought; 
for  therein  lies  their  worth.  In  themselves  they  may  now 
have  but  slight  value  ;  as  an  historical  document  they  may 
still  be  of  use.  Therefore  I  have  retained  the  text  almost 
intact. 

On  many  issues  the  volume  no  longer  represents  the  views 
of  contemporary  science  ;  on  some  issues,  it  no  longer 
exactly  expresses  my  own  opinion,  or  at  least,  not  as  I  should 
now  express  myself  if  I  were  called  to  give  my  views.  For 
example,  in  regard  to  the  application  of  the  indeterminate 
sentence,  I  might  have  other  reservations  than  those  pre- 
sented in  1898. 

This  explains  why  the  essay  retains  the  character  and  the 
form  of  its  first  appearance  ;  it  expressed  the  legitimate 
position  of  the  period  and  what  I  myself  held  in  1898,  —  and 
nothing  more.  The  change  of  date  of  the  present  edition 
is  not  intended  to  indicate  a  final  point  of  crystallization, 
either  in  the  advance  of  opinion  or  in  the  conviction  of  the 
author,  nor  to  imply  that  the  trend  of  these  studies  has  lost 
its  plasticity.  Though  the  fundamental  positions  remain 
the  same,  account  should  be  taken  of  the  change  of  date, 
if  only  to  indicate  that  institutions  have  changed,  that  laws 
have  been  revised,  and  that  the  literature  has  considerably 
increased.  It  seemed  to  me  adequate  to  recognize  this  by 
adding  brief  notes  in  the  text,  and  particularly  at  the  end 
of  the  chapters.  These  offer  not  a  complete  bibliography 
of  the  subject  up  to  the  present  time,  but  merely  an  indi- 
cation of  a  few  of  the  principal  works  containing  complete 
references. 

For  reasons  already  mentioned  I  found  it  difficult  to  take 


xxiv  PREFACE  TO  SECOND  EDITION 

up  the  task  of  summarizing  and  compiling;  and  I  accepted 
the  kind  offer  of  co-operation  from  M.  Gaston  Morin,  my 
able  assistant  in  the  Paris  Faculty  of  Law,  whose  special 
interests  keep  him  in  touch  with  the  bibliography  of  criminal 
law.  In  associating  his  work  with  mine,  I  followed  the  ex- 
ample instituted  some  years  ago  in  the  Faculty  of  Paris 
by  my  distinguished  colleagues,  —  MM.  Le  Poittevin, 
Garcpn,  and  Thaller.  They  introduced  practical  confer- 
ences and  co-operative  research  of  a  distinctly  scientific 
grade,  and  thus  established  a  profitable  collaboration  of 
professors  and  students,  in  which  the  direction  of  the  work 
retained  its  recognizable  authorship  yet  left  a  free  and  fertile 
opportunity  for  individual  initiative.  It  is  well  to  draw 
wider  attention  to  these  first  attempts  at  such  co-operation 
in  our  Faculties  of  Law,  and  to  recognize  its  advantages. 
This  change  in  method  and  attitude  within  the  higher  legal 
education  bespeaks  well  for  the  future. 

I  appreciate  that  the  advantages  of  the  present  collab- 
oration are  in  my  favor.  I  do  not  mean  to  imply  that  my 
efforts  are  on  a  par  with  the  very  successful  ventures  of 
my  colleagues.  I  refer  to  them  only  to  commend  their  meth- 
ods and  to  indicate  that  I  hold  it  desirable  to  follow,  however 
remotely,  in  their  footsteps,  yet  without  assuming  to  a  like 
success,  at  least  so  far  as  my  own  contribution  is  concerned. 
As  for  the  assistance  rendered  me,  of  which  I  have  reaped 
the  benefits,  I  wish  to  express  to  M.  Gaston  Morin  my  sin- 
cere and  profound  gratitude. 

The  circumstances  that  turned  my  career  to  a  somewhat 
different  line  of  study  and  instruction  explain  my  inability 
to  carry  out  the  project  contemplated  when  I  first  pub- 
lished this  book.  I  referred  there  to  my  intention  to  issue, 
under  the  title  of  "Problemes  de  Politique  criminelle, " 
a  series  of  legal  and  sociological  studies  covering  some  of  the 


PREFACE  TO  SECOND  EDITION  xxv 

important  problems  in  the  science  of  criminal  law.  I  wished 
particularly  to  resume  and  pursue  more  thoroughly  my 
first  studies  upon  the  question  of  "La  tentative  et  du  delit 
impossible."  I  was  strongly  encouraged  by  the  conclusions 
accepted  on  this  subject  by  such  authorities  as  M.  Garraud 
(in  the  last  edition  of  his  text-book)  and  M.  Garc.cn  (in  his 
annotations  of  the  penal  code);  and,  if  I  may  be  permitted 
to  say  so,  by  the  support  thus  given  to  the  principles  and 
ideas  which  I  had  set  forth.  I  must  also  mention  the  ex- 
cellent contributions  to  the  same  subject  published  in  Ger- 
many by  M.  Ernest  Delaquis. 

But  I  was  particularly  drawn  to  the  important  problem 
of  "Complicite  et  du  delit  collectif, "  and  finally  to  a  very 
live  question  of  the  day,  that  of  "  Responsibilite  attenuee." 
My  course  in  Criminal  Law  for  the  candidates  for  the  doc- 
torate of  law  had  reached  these  topics,  when  I  was  offered 
the  chair  of  Civil  Law,  unexpectedly  vacant,  from  which  I 
soon  transferred  to  the  course  in  Comparative  Civil  Law. 

I  promptly  realized  that  it  would  be  difficult  to  pursue 
these  several  lines  of  study  simultaneously,  and  that  my 
promises  were  likely  to  be  most  imperfectly  fulfilled.  I  am 
not  sure  that  the  volume  on  Criminal  Law  will  ever  appear; 
and  in  the  present  edition  I  have  omitted  any  reference  — 
which,  in  any  case,  would  be  premature  —  to  what  I  had 
proposed  to  say  on  the  questions  there  to  be  considered. 
As  the  preparation  of  this  new  edition  may  thus  be  my  last 
scientific  contribution  in  the  field  of  criminal  law,  I  wish 
to  pay  my  tribute  to  one  to  whom  we  are  largely  indebted 
for  the  considerable  progress  of  legal  science  in  this  field,  — 
one  whom  I,  more  than  any  one  else,  have  particular  reason 
to  remember,  because  it  was  he  who  encouraged  my  first 
attempts  and  introduced  to  the  public  the  book  which  I 
now  republish.  I  refer  to  M.  Gabriel  Tarde,  the  distin- 


xxvi  PREFACE  TO  SECOND  EDITION 

guished  sociologist,  a  scholar  of  profound  and  original  views, 
of  fertile  imagination  and  brilliant  insight,  who  opened  new 
paths  in  many  directions  and  left  a  permanent  impression 
wherever  he  ventured.  He  passed  away  at  a  time  when 
his  aid  would  have  been  most  helpful  in  establishing  between 
the  position  of  the  law  and  that  of  sociology  the  reconciliation 
here  favored.  In  this  respect,  as  in  many  another,  his  loss 
is  irreparable.  The  merit  of  his  services  and  of  the  man 
will  be  increasingly  appreciated  as  time  goes  on. 

In  the  compromise  which  M.  Tarde  furthered  between 
the  principles  of  abstract  reasoning  and  the  data  of  experi- 
ence, he  effected  a  service  in  behalf  of  criminal  law  in  some 
respects  comparable  to  that  achieved  in  the  field  of  civil 
law  by  the  distinguished  M.  Bufnoir,  to  whom  was  dedicated 
the  original  edition  of  this  book.  It  is  natural  that  I  now 
associate  with  his  memory  that  of  M.  Gabriel  Tarde.  To 
both  I  express  my  personal  obligation  ;  and  to  both  all 
future  students  of  civil  law  will  be  increasingly  grateful. 
The  demands  of  the  social  order  represented  by  the  rigidity 
of  legal  principles  as  well  as  by  the  requirements  of  individ- 
ual justice,  will  ever  be  recognized;  and  such  requirements 
will  more  and  more  bear  the  impress  of  psychology  and 
the  principle  of  individualization.1 

R.   SALEILLES. 

PARIS,  April  24,  1908. 

1  In  addition  to  the  works  on  Psychiatry  cited  in  this  preface,  I  wish  to 
refer  to  a  new  book  by  Dr.  Dubais,  "  L'Education  de  soi-mfime"  (Paris, 
1908).  [English  translation:  "Self  Control,  and  how  to  secure  it."  Punk  & 
Wagnalls  Co.]  —  See  the  chapter  entitled  "L'Acte,"  p.  88,  first  edition.  See 
also  the  important  "Traite  de  Pathologic  mentale,"  published  under  the 
direction  of  Dr.  Gilbert  Ballet  (Paris,  1903),  pp.  1465,  seq. 


INTRODUCTION 

BY  GABRIEL  TARDE* 

As  the  first  volume  of  a  series  in  sociology  to  be  published 
under  the  auspices  of  the  College  of  Social  Sciences,  the 
present  book  is  certain  to  meet  with  a  prompt  and  decided 
recognition.  This  institution,  founded  three  years  ago, 
has  satisfied  a  real  public  need;  it  has  become  a  permanent 
congress,  not  of  religions  but,  more  venturesomely,  of  social 
philosophies.  Common  points  of  view  are  more  readily 
found  in  Christianity,  Buddhism,  and  Mohammedanism, 
than  in  the  several  doctrines  that,  from  Le  Play  and  Comte 
to  Karl  Marx,  have  been  expounded  hi  turn  from  the  same 
professorial  chair  in  the  rue  de  Tournon.  Here  extremes 
have  met  by  finding  a  common  ground  in  the  field  of  prac- 
tical applications,  to  which,  even  more  than  to  theories,  the 
hospitality  of  this  foundation  has  been  extended.  It  neglects 
no  timely  question  in  the  interests  of  public  philanthropy, 
political  economy,  and  even  aesthetics  and  ethics.  Natu- 
rally the  problem  of  crime  and  punishment  could  not  remain 
foreign  to  its  purpose.  The  lecturer  of  this  year,  assigned 
to  present  and  discuss  these  problems,  is  the  author  of  the 
present  book.  His  readers  will  agree  with  the  verdict  of 
M.  Saleilles'  audiences,  that  the  choice  was  a  happy  one. 

1  Late  Magistrate  in  Picardy,  Professor  of  Modern  Philosophy  in  the 
College  of  France,  and  lecturer  in  the  Paris  School  of  Political  Sciences,  author 
of  "Penal  Philosophy"  (No.  VI, in  the  Modern  Criminal  Science  Series). — ED 

xxvii 


xxviii  INTRODUCTION 

M.  Saleilles  presents  two  qualities  rarely  combined:  the 
dialectic  subtlety  of  the  jurist  and  the  keen  analysis  of  the 
psychologist  and  criminologist.  His  ability  as  a  thinker 
found  a  field  for  expression  in  the  Faculty  of  Law  of  Paris.1 
The  same  quality  appears  in  this  volume,  in  which  he  carries 
out  his  purpose  of  reconciling  a  loyalty  to  moral  responsi- 
bility based  upon  the  freedom  of  the  will  with  the  advocacy 
of  a  punitive  system  derived  from  quite  different  consider- 
ations. He  forcibly  expresses  the  objections  to  the  con- 
ception of  free  will  as  a  basis  of  penal  condemnatio'n.  He 
mentions  the  practical  difficulty  of  establishing  the  presence 
of  freedom;  and  again  he  brings  forward  the  paradox  that, 
to  be  consistent,  this  view  must  assert  that  the  first  offender 
should  be  held  most  culpable,  while  the  recidivist,  having 
less  power  to  resist  as  he  becomes  more  hardened,  should 
be  exempted  from  punishment.  In  brief,  it  appears  that 
the  author,  if  not  definitely  siding  with  the  new  moralists, 
such  as  MM.  Cuche,  Moriaud,  and  others,  who,  notwith- 
standing their  religious  convictions,  are  breaking  away  from 
the  traditional  association  of  ideas  between  freedom  and 
responsibility,  yet  closely  approaches  their  conclusions.  In 
common  with  them  he  regards  the  freedom  of  the  will  as 
having  no  bearing  upon  moral  or  criminal  responsibility. 
It  may  be  that  what  he  retains  of  the  freedom  of  the  will, 
presumably  to  appease  the  popular  conscience,  is  more  the 
name  than  the  reality.  While  admitting  that  responsibility 
implies  freedom,  he  adds  that  freedom  as  popularly  con- 
ceived is  simply  physiological  normality.  "What  determines 
the  degree  of  popular  indignation  is  not  the  measure  of  free- 
dom which  the  act  implies,  but  the  degree  of  sympathy  or 

1  M.  Saleilles  was  recently  obliged  to  undertake  the  courses  in  civil  law, 
ably  and  learnedly  presented  by  his  father-in-law,  M.  Bufnoir.  The  sudden 
death  of  the  latter  necessitated  M.  Saleilles'  acceptance  of  a  difficult  task. 


INTRODUCTION  xxix 

repugnance  which  the  agent  arouses,"  according  to  his 
character  as  revealed  in  act  and  speech.  This  amounts 
to  saying  that  the  popular  conscience,  in  reaching  a  verdict, 
is  concerned  in  determining,  not  whether  the  incriminating 
act  was  freely  done  (which  would  be  paradoxical,  implying 
that  the  issue  could  have  been  different  from  what  it  was, 
at  the  moment  when  it  became  the  issue)  but  whether  it 
conformed  to  the  permanent  and  fundamental  character 
of  the  accused.  M.  Saleilles  rightly  says  that  "the  con- 
ception of  freedom  is  the  same  as  that  of  a  first  cause. "  Now 
I  know  of  no  jury  or  court  which,  before  condemning  a  man, 
has  ever  stopped  to  ask  whether  he  was  the  primary  or  only 
the  secondary  cause  of  his  act.  A  real  cause  is  enough. 
What  makes  a  man's  act  his  own  is  an  inner  causality  — 
"a  psychic  determinism,"  as  M.  Fouillee  would  say.  Such 
issue  belongs  to  every  individuality,  and  to  the  individual 
himself,  —  not  to  the  alleged  physical,  physiological,  and 
social  factors,  of  which  the  personality  is  but  the  point  of 
intersection.  It  is  also  —  which  is  at  times  overlooked  —  the 
subjective  fusion  and  expression  of  these  several  conditions. 
I  do  not  deny,  more  than  does  M.  Saleilles,  the  existence 
of  freedom  in  a  metaphysical  sense;  but  I  separate  it  from 
the  problem  of  responsibility,  where  the  conception  should 
be  retained,  at  least  in  outward  form.  Hence  arises  the 
difficulty  of  reconciling  the  two  conclusions:  how,  on  the 
one  hand,  to  retain  moral  responsibility,  centering  about 
the  freedom  of  the  will,  as  the  basis  of  condemnation;  on 
the  other,  to  base  penal  legislation  on  the  very  different 
principle  of  the  individualization  of  punishment.1  Thus 
freedom  would  be  reduced  to  a  mere  principle  "without 

1  "Responsibility  as  the  basis  of  punishment  and  individualization  as 
the  criterion  of  its  application:  such  is  the  formula  of  modern  penal  law." 
(P.  181). 


XXX  INTRODUCTION 

application*';  for  it  does  not  determine  the  severity  nor 
the  choice  of  the  punishment.  The  defendant  is  judged 
to  be  culpable  because,  by  implication,  he  is  judged  to  have 
been  free;  though  care  is  taken  not  to  mention  the  word 
"  freedom,"  a  caution  observed  by  the  Code  of  1810,  and 
commended  by  our  author.  But  it  is  the  permanent  char- 
acter that  punitive  trea  ment  should  consider.  If  this  be  so, 
it  follows  that  when  the  crime  appears  to  be  the  issue  not 
of  the  true  character  of  the  agent  but  rather  of  a  momentary 
lapse,  punishment  should  not  be  enforced;  for  there  is  no 
occasion  to  reform  a  character  because  of  incidental  conduct. 
Consequently  it  would  seem  more  logical  to  let  both  the 
responsibility  and  the  liability  to  punishment  depend  upon 
individual  character,  and  thus  responsibility  and  individual- 
ization,  far  from  being  contradictory  or  antagonistic,  spring 
from  a  common  origin.  If  our  author  does  not  quite  reach 
this  position,  the  trend  of  his  characteristic  thought  brings 
him  near  to  it.  Among  the  interpretations  which  he  gives 
to  the  conception  of  freedom,  the  one  he  favors  consists  in 
defining  it  as  an  influence  upon  the  personality  tending 
towards  a  change  of  character.  In  this  sense,  which  is  ac- 
ceptable even  to  the  determinists,  he  notes  pertinently  that 
punishment  considers  future  freedom,  "the  germ  of  the 
moral  future  of  the  condemned,"  and  must  regard  this 
much  more  than  his  past  freedom  —  "that  which  led  him 
towards  crime. " 

The  problem  is  not  to  proportion  the  punishment  to  the 
material  evil  done,  nor  to  the  degree  of  criminality  involved 
at  the  moment  of  the  crime,  but  mainly  to  adjust  it  to  the 
perversity  of  the  agent,  to  his  real  criminality,  which  is  to 
be  prevented  from  expressing  itself  in  further  action.  This 
view,  which  he  recognizes  as  of  ancient  origin,  M.  Saleilles 
(in  common  with  the  International  Union  of  Criminal  Law) 


INTRODUCTION  xxxi 

ascribes  to  the  Italian  school.  He  cites  the  official  eccle- 
siastical decrees  that  anticipate  our  psychological  criminol- 
ogists  on  this  point,  in  that,  through  their  attention  to  the 
motive,  they  regard  punishment  as  a  remedial  measure,  rather 
than  as  a  debt  or  an  expiation.  I  confess  that  I  am  less  sur- 
prised to  find  this  view  among  the  theologians  than  among 
the  positivists.  It  is  strange  that  when  the  criminologists 
of  our  day,  whether  naturalists  or  sociologists,  look  for  the 
causes  of  crime,  they  find  only  impersonal  factors  like  climate, 
social  environment,  season,  race,  cranial  or  other  anomalies; 
in  brief,  they  make  crime  a  natural  or  sociological  fact,  and 
depersonalize  it.  And  later,  when  they  come  to  the  problem 
of  the  application  of  their  theories  to  punishment,  one  is 
surprised  to  find  them  carrying  the  individualization  of 
punishment  to  the  extreme,  as  though  the  individual,  who 
hitherto  was  of  no  consequence,  had  suddenly  become  all- 
important.  A  choice  must  be  made:  if  we  regard  it  es- 
tablished that  punishment  should  be  individually  adjusted, 
we  should  also  agree  that  crime  and  criminality  are  pre-emi- 
nently affairs  of  the  individual,  and  this,  notwithstanding 
the  range  of  surrounding  influences  and  external  circum- 
stances; for  it  is  truer  that  the  individual  utilizes  these 
than  that  he  is  moulded  by  them.  If  we  persist  in  believing 
that  the  individual  does  not  make  his  own  what  he  imbibes 
(in  which  case  there  would  be  no  individuality);  if  we  per- 
sist in  believing  and  maintaining  that  the  true  causes  of 
crime  are  the  impersonal  factors  constantly  present  in  nature, 
in  history,  and  in  society,  then  our  endeavor  should  be  con- 
centrated upon  the  reform  and  improvement  of  these  fac- 
tors, and  not  upon  the  reform  and  improvement  of  the 
individual,  who  is  but  the  passive  servant  of  their  sover- 
eign decrees. 

Consequently,    the   general   tendency   to   adjust   punish- 


xxxii  INTRODUCTION 

ment  to  the  individual  clearly  shows  that  crime  is  more  and 
more  regarded  as  the  result  of  individual  causes  and  that 
the  individual  is  held  responsible  for  their  occurrence. 
Responsibility  and  individualization  of  punishment  are  not 
incompatible  ;  and  M.  Saleilles  need  not  excuse  their  as- 
sociation. The  two  are  connected,  the  one  implying  the 
other,  and  by  associating  them  in  his  theory  he  has  avoided 
the  contradiction  of  more  radical  but  less  logical  positions. 
It  is  unfortunate  that  in  individualizing  punishment  we 
assign  unequal  punishments  for  like  offenses.  It  is  well 
to  recognize  the  sense  of  apparent  injustice  which  this  in- 
equality cannot  fail  to  present  to  a  large  number  of  the 
convicted  as  well  as  to  the  uninformed  public.  Criminal 
law  is  admirably  defined  by  our  author  as  "the  sociology 
of'  crime  adapted  to  the  sense  of  justice. "  But  is  not  the 
sense  of  justice  dominantly  that  of  an  equality  of  treatment? 
So  far  as  possible  it  is  the  duty  of  legislatures,  in  regulating 
punishments  and  hi  fixing  the  upper  and  lower  limit  within 
which  the  discretion  of  the  judge  operates,  to  take  account 
of  this  fundamental  and  popular  notion  of  equity.  Thus 
I  am  entirely  in  accord  with  M.  Saleilles  in  recognizing  that 
the  individualization  of  punishment  cannot  be  administered 
by  statute.  It  is  primarily  a  judicial  matter.  It  is  admin- 
istrative as  well,  but  under  the  supervision  of  the  judge. 
Such  judicial  supervision  would  be  facilitated  by  bringing 
the  prison  administration  under  the  authority  of  the  Minister 
of  Justice,  —  a  reform  constantly  urged  and  as  constantly 
postponed.  Our  author  rightly  regards  the  Berenger  law, 
which  becomes  better  understood  the  more  it  is  extended, 
as  an  admirable  beginning  of  penal  individualization  by 
judicial  authority.  This  new  and  successful  law  falls  in 
well  with  the  principles  advanced  in  the  present  volume. 
As  indicated  by  the  official  report  of  1895  on  criminal  sta- 


INTRODUCTION  xxxiii 

tistics,  we  are  indebted  to  it  for  the  arrest  and  decline  of 
the  rising  wave  of  habitual  crime,  which  was  apparently 
beyond  control.  The  law  of  deportation,  which  owes  its 
origin  to  a  very  different  inspiration,  is  far  from  having 
proved  equally  effective.  "Gentleness  does  more  than 
violence. " 

G.  TARDE. 

APRIL,  1898. 


AUTHOR'S  PREFACE  TO  THE  FIRST 
EDITION 

THE  course  of  lectures  which  I  had  the  honor  to  deliver 
during  the  past  winter  at  the  "College  of  Social  Sciences" 
on  the  " Individualization  of  Punishment"  is  reproduced, 
with  slight  modification,  in  this  volume.  As  I  was  addressing 
a  mixed  audience,  for  the  most  part  unknown  to  me,  who 
presumably  were  to  be  my  hearers  throughout  the  course, 
I  had  to  avoid  considerations  proper  to  technical  instruction 
and  give  the  lectures  a  markedly  popular  character.  To 
an  audience  somewhat  unfamiliar  with  legal  conceptions 
I  could  not  speak  as  a  jurist;  accordingly  I  kept  to  the  field 
of  general  ideas.  This  will  explain  certain  gaps  and  short- 
comings of  the  book.  I  am  not  unaware  of  them,  but  I 
thought  it  best  to  retain  the  original  form  of  presentation 
which  this  work  is  to  reflect.  If  the  scientific  aspect  has 
thereby  been  sacrificed,  it  may  possibly  have  given  place 
to  something  more  engaging,  more  individual,  and  more 
vivid. 

I  must  add  a  word  of  explanation  in  regard  to  another 
matter.  The  subject,  treated  exhaustively,  would  include 
all  the  branches  of  criminal  law  ;  for  the  applications  of  the 
principle  of  individualization  have  relation  to  every  part 
thereof.  It  was  quite  impossible  in  a  limited  course  of  ten 
lectures  to  presume  to  cover  this  ground.  I  had  to  be  satis- 
fied to  set  forth  the  principles  and  expound  the  system;  for 

XXXV 


xxxvi  PREFACE  TO  FIRST  EDITION 

such  was  the  scope  of  the  course.    This  work  contains  nothing 
more;  it  is  an  exposition  of  principles. 

I  have  in  mind  to  follow  it  with  a  sequel;  and  in  a  second 
work,  now  hi  course  of  preparation  and  bearing  the  title 
"Problemes  de  Politique  Criminelle, "  I  shall  set  forth 
certain  applications  of  the  principles  of  individualization, 
so  far  as  relates  to  such  topics  as  limited  responsibility,  the 
status  of  minors,  complicity,  and  habitual  crime. 

It  was  my  first  intention  to  dedicate  this  book  to  the 
Societe  Generale  des  Prisons,  under  the  influence  and  auspices 
of  which  I  received  my  brief  training  as  a  criminologist 
and  to  which  I  owe  a  debt  of  gratitude.  I  had  informally 
inquired  whether  the  Society  would  be  willing  to  accept 
this  tribute,  and  was  about  to  present  my  request  officially 
upon  finishing  the  volume,  when  I  was  overwhelmed  by  an 
inconsolable  loss,  both  personal  and  in  the  relation  of  pupil 
to  master. 

Under  these  circumstances  it  was  natural  for  me  to  in- 
scribe this  work  to  the  memory  of  M.  Bufnoir.  It  is  true 
that  he  was  not  a  specialist  in  criminal  law;  but  to  a  mind 
of  his  scope  none  of  the  branches  of  legal  scholarship  was 
foreign.  M.  Bufnoir  was  one  of  those  all-around  men  who 
become  specialists  in  whatever  they  have  in  hand,  and  al- 
most in  what  they  are  momentarily  discussing;  and  ques- 
tions of  criminology  were  of  interest  to  him.  But  there  is 
more  to  be  said.  Through  the  force  of  his  teaching  he  intro- 
duced a  method  of  instruction,  cautious  and  sound,  yet  plas- 
tic, delicate,  and  nicely  adjusted  to  the  requirements  of  the 
practical  and  the  social  situation.  Such  a  method  is  an 
instrument  of  absolutely  general  application.  It  is  not 
limited  to  the  sphere  of  civil  law,  but  may  be  extended  and 
more  completely  and  comprehensively  developed,  wherever 
the  requirements  of  society,  as  expressed  in  abstract  legal 


PREFACE  TO  FIRST  EDITION  xxxvii 

formulae,  demand  a  more  realistic  interpretation.  Such  is 
the  case  in  regard  to  criminal  law.  In  common  with  other 
branches  of  law  and  perhaps  most  notably  of  all,  criminal 
law  owes  much  to  such  disciplines  as  favor  the  newer  methods 
of  interpretation. 

Let  me  return  to  considerations  of  a  more  personal  type. 
In  the  progress  of  this  book  M.  Bufnoir  had  a  personal  share. 
I  constantly  consulted  him  in  the  preparation  of  my  lectures. 
He  knew  my  difficulties  and  my  hesitations;  possibly  also 
my  temerity,  which  he  dared  not  encourage  too  openly  but 
which  he  was  not  displeased  to  put  to  the  test. 

My  task  is  accomplished;  but  the  gifted  and  versatile 
man,  who  guided  me  in  its  preparation  and  whose  intimacy 
I  enjoyed,  has  passed  away.  His  influence  pervades  the 
book,  and  I  have  inscribed  his  name  upon  the  dedicatory 
page.  In  resuming  my  work  after  the  shock  of  such  a  loss 
I  could  not  do  otherwise.  The  inscription  was  more  than 
the  tribute  of  affection  and  the  gratitude  of  a  pupil.  The 
sentiment  that  inspired  me  will  be  understood  by  every 
sympathetic  reader. 

In  closing  I  wish  to  extend  my  profound  thanks  for  the 
auspices  under  which  this  essay  is  to  appear.  The  modest 
attempt  which  I  present  to  the  public  hardly  merits  the 
sponsorship  of  the  name  of  M.  Tarde.  But  I  would  not 
forego  the  privilege;  for  it  is  to  the  volume,  as  the  first 
of  the  College  of  Social  Sciences  Series  that  the  eminent 
sociologist  has  willingly  given  the  stamp  of  his  approval. 
This,  at  all  events,  is  the  only  ground  upon  which  I  can  con- 
scientiously accept  it.  For  his  consideration  of  the  book 
thus  introducing  the  series,  as  not  unworthy  of  his  endorse- 
ment, I  tender  my  cordial  and  respectful  appreciation;  and 
I  ask  him  to  accept  as  well  the  gratitude  of  my  hearers,  who 
in  reality  were  my  collaborators.  For  in  oral  instruction 


xxxviii  PREFACE  TO  FIRST  EDITION 

that  dispenses  with  a  set  program  and  is  not  governed  by 
the  profitless  concern  for  a  diploma,  such  support  is  a  com- 
mon experience.  The  course  grows  by  the  mutual  reaction 
of  mind  upon  mind,  and  by  the  reciprocal  sympathy  of 
speaker  and  hearer.  The  lecturer  does  not  prepare  it  hi 
advance,  but  awaits  the  inspiration  of  his  audience.  Such 
was  the  origin  of  the  present  book. 

R.   SALEILLES. 
PARIS,  March  11.  1898. 


LIST  OF  PERIODICALS  REFERRED  TO 
,    IN  NOTES  AND  TEXT 

Annales  de  I'^lnseignement  superieur  de  Grenoble 

Annales  de  1' University  de  Grenoble 

Annales  de  philosophic  chr^tienne 

Annee  sociologique 

Archivio  giuridico 

Bulletin  de  la  Societ£  francaise  de  philosophic 

Bulletin  de  1' Union  Internationale  de  droit  penal.     (Bull,  de  1'Un. 

inter,  de  droit  p^nal) 
Bulletin  de  1' Union  pour  1'action  morale 
Der  Gerichtsaal 
Deutsche  Rundschau 
Figaro 
Griinhut's   Zeitschrift   fur  das   privat  und   offentliche   Recht  der 

Gegenwart 

Journal  de  psychologic  normale  et  pathologique 
Kritische   Vierteljahresschrift  fiir  Gesetzgebung  und   Rechtswis- 

senschafb 
La  Quinzaine 
Reforme  sociale 
Revue  Bleue 

Revue  critique  de  legislation  et  de  jurisprudence 
Revue  de  m^taphysique  et  de  morale 
Revue  de  Paris 
Revue  de  psychologic  sociale 
Revue  des  Deux  Mondes 
Revue  du  Clerge  francais 
Revue  Internationale  de  sociologie 
Revue  penale  suisse 
Revue  p^nitentiaire 
Revue  scientifique 
Zeitschrift  fur  die   gesammte   Strafrechtswissenschaft.     (Zeitsch. 

f.  d.  ges  Str.  W. ;  In  connection  with  Liszt,  Z.) 


CONTENTS 

FACE 

GENERAL  INTRODUCTION  TO  THE  CRIMINAL  SCIENCE  SERIES    ....        v 

INTRODUCTION  TO  ENGLISH  VERSION  BY  ROSCOE  POUND xi 

AUTHOR'S  PREFACE  TO  SECOND  EDITION xxi 

INTRODUCTION  BY  GABRIEL  TARDE      xxvii 

AUTHOR'S  PREFACE  TO  FIRST  EDITION xxxv 

LIST  OF  PERIODICALS  REFERRED  TO    .  .  xxxix 


CHAPTER  I 

THE  STATEMENT  OF  THE  PROBLEM 

§    1.   Sociological  and  Psychological  Foundations      1 

§    2.   The  Subjective  and  Objective  Aspects  of  Crime      3 

§    3.   The  Purpose  of  Punishment:  "Zweckstrafe" 8 

§    4.   Practical  Influences:  the  Jury 10 

§    5.   Types  of  Individualization 11 

§    6.   Queries  and  Objections:  the  Schools .   .  13 

§    7.  Consistencies  and  Concessions  of  Opinion 15 

§    8.  The  Origin  of  the  Classic  School 18 

CHAPTER  II 

\ 

THE  HISTORY  OF  PUNISHMENT 

§  9.  Introductory:  Private  and  Communal  Punishment 20 

§10.  Primitive  Punishment  as  Penalty  and  as  Expiation:  the  Wergild  .  23 
8  11.  The  Growth  of  Communal  Interests  and  Social  Consciousness:  the 

Religious  Factor 26 

§  12.  Early  Views  of  Objective  Crime  and  Subjective  Criminality  ...  SO 
§  13.  Responsibility,  Freedom  of  the  Will,  and  Sin,  as  determining 

Crime 34 

8  14.  The  Analysis  of  the  Grounds  of  Punishment;  Responsibility  in 

Ecclesiastical  Law 39 

8  15.  Consequences  of  the  Older  Position:  its  Contrast  with  the  Modern 

View 42 

8  16.  Early  Types  of  Individualization 44 

8  17.  The  Discretionary  Power  of  the  Judge,  and  Individualization  .  .  47 

8  18.  The  Protection  of  the  Social  Interests 49 

8  19.  The  Classical  and  Historical  Position 51 


xlii  CONTENTS 

CHAPTER  HI 

THE  CLASSIC  SCHOOL 

PAGE 

§  20.  The  Eighteenth  Century  Philosophy  of  Crime 52 

§  21.   Modifications  and  Concessions  of  Later  Codes 56 

§  22.   Advantages  and  Defects  of  the  Classic  System 58 

§  23.  The  Reaction  and  the  Neo-Classic  Transition 61 

CHAPTER  IV 

THE  NEC-CLASSIC  SCHOOL  AND  INDIVIDUALIZATION  BASED  UPON 
RESPONSIBILITY 

§  24.  The  Assumption  of  Free  Will:  the  Fallacy  Involved 63 

§  25.   Empirical  Conditions  of  Freedom:  Premeditation 68 

§  26.   Potential  and  Actual  Freedom:  Applications 70 

§  27.  The  Social  Regulation  of  Conduct 73 

§  28.   Responsibility  Proportioned  to  the  Degree  of  Freedom;  Irresponsi- 
bility and  its  Establishment 75 

§  29.   The  Basis  of  Mitigation  and  of  Exemption  from  Punishment   .    .  79 
§  30.   The  Individualization  thus  Resulting;  Practical  and  Theoretical 

Objections      83 

§  31.  Remote  and  Immediate  Responsibility 87 

§  32.   The  Social  Responsibility  for  Crime 90 

§  33.   Motives  and  Impressionism  of  Juries 93 

§  34.  Individualization  Resulting  from  the  Variable  Attitude  of  Juries   .  95 


CHAPTER  V 

THE  ITALIAN  SCHOOL  AND  INDIVIDUALIZATION  BASED  UPON  FoRinDABiLnr 

§  35.  Historical  Review  of  the  Italian  Movement  in  Penology  ....  99 

§  36.   Practical  Situations  and  Reforms:  the  Making  of  the  Recidivist  .  108 
§  37.   The  Solution  Proposes  the  Personal  Consideration  of  the  Offender 

and  his  Social  Reinstatement 107 

§  38.   Gradation  by  Presumptive  Morality  and  Good  Conduct  of  Of- 
fenders: Protest  against  Promiscuous  Association Ill 

§  39.   Criticism  of  the  Position :  its  Basis  in  Law  and  in  Public  Opinion  .  114 

§40.   Purpose  and  Effect  of  Punishment:  Consequent  Status  of  Crime  .  116 

§  41.   The  Types  of  Criminals  and  their  Individualized  Treatment    .    .  118 

§  42.  Difficulties  Attaching  to  the  Position  of  Lombroso 122 

§43.   A  Third  Italian  School 125 

§  44.  The  Physical  Recognition  of  the  Criminal;  Innate  and  Acquired 

Degenerate  Traits 127 

§  45.   Other  Phases  of  Italian  Penology;  Judicial  Diagnosis 132 

§  46.   What  Italian  Penology  has  accomplished 134 


CONTENTS  xljii 

CHAPTER  VI 

THE  DOCTRINE  OF  RESPONSIBILITY 

PAGE 

§  47.   The  Moral  Issues  in  Punishment 137 

§  48.  The  Criterion  of  Normality;  Crime  and  Insanity;  Mental  and 

Moral  Maturity 140 

§  49.   Preventive  Punishments  for  the  Irresponsible      145 

§  50.   True  Punishments  for  True  Criminals 148 

§  51.   A  Mediating  View 150 

§52.   The  Popular  and  Social  Bases  of  Responsibility;  Social  Solidarity   .  152 

§  53.   The  Subconscious  Basis  in  Feeling  and  its  Logical  Justification    .  157 

§  54.   Criminality  and  Motives;  Responsibility  and  the  Moral  Nature   .  159 

§  55.   General  and  Specific  Freedom  of  Action 165 

§  56.   Responsibility,  Freedom,  and  the  Will 168 

§  57.   Freedom  and  the  Principle  of  Causality 172 

§  58.   The  Human  Will  as  a  First  Cause 175 

§  59.   Determinism  and  the  Environment 177 

§  60.  Freedom  Essential  to  Punishment 179 


CHAPTER  VII 

RESPONSIBILITY  AND  INDIVIDUALIZATION 

§  61.  Freedom  in  the  Penal  Codes 182 

§  62.  Social  and  Personal  Aspects  of  Punishment:  their  Legal  Recogni- 
tion       184 

§  63.   The  Conception  of  Punishment 187 

§  64.   Society's  Interest  in  Punishment;  Crime  and  Degradation    .    .    .  189 

§  65.   The  Moral  Purpose  of  Individualized  Punishment      192 

§  66.   Ecclesiastical  Law  and  Individualization 196 

§  67.   Examples  in  Penance  and  Clemency  for  Special  Crimes    ....  199 

§  68.   Individualization  in  French  Codes;  Political  Crimes 203 

§  69.   Individualization  in  Deportation 206 

§  70.   Individualization  in  Short-term  and  Long-term  Sentences    .    .    .  209 

§  71.  The  System  of  Parole:  its  Faulty  Application 215 


CHAPTER  VIII 

LEGAL  INDIVIDUALIZATION 

§  72.  Legal  Individualization  Necessarily  General 220 

§  73.   Examples  of  False  Individualization      223 

§  74.   Approach  to  Judicial  Individualization  and  the  Cases  Concerned  227 

§  75.   The  Proper  Education  of  Magistrates 231 

§  76.   The  Place  of  the  Jury  in  Individualization 232 


xliv  CONTENTS 

CHAPTER  IX 

JUDICIAL  INDIVIDUALIZATION 

PAGE 

§  77.   Older  Forms  of  Individualization 237 

§  78.   The  Analysis  and  Place  of  the  Motive 289 

§  79.   A  Second  Interpretation  of  the  Motive:  the  Psychological  Factor  243 

§  80.   Difficulties  in  the  Application  of  the  Motive  to  Punishment     .    .  247 

§  81.   A  Third  Interpretation  of  the  Motive:  the  Moral  Status  ....  251 

§  82. .  Individualization  and  Political  Crimes 253 

§  83.   Individualization  in  the  Italian  Penal  Code 256 

§  84.   Principles  underlying  Individualization;  Uniform  Punishments    .  260 

§  85.   Legal  Individualization  for  Special  Offenses  or  Circumstances  .    .  262 
§  86.   The  System  of  Parallel   Punishments;   Punishment  and  Social 

Dishonor 266 

§  87.   The  Factors  entering  into  the  Classification  of  Criminals      .    .    .  270 
§  88.   A  Tentative  System  of  Individualization;    Static  and  Dynamic 

Criminality 274 

§  89.   The  Detailed  Classification  of  Criminals 278 

§  90.   Concessions  to  other  Principles 282 

§  91.   Special  Types  of  Individualization 285 

§  92.   Possible  Extensions  of  Individualization;  Relation  to  Preventive 

Measures 288 

CHAPTER  X 

ADMINISTRATIVE  INDIVIDUALIZATION 

§  93.   The  Administrative  Treatment 295 

§  94.  The  Principle  of  Indeterminate  Sentences;  the  Elmira  System  .    .  298 
§  95.   Modified   Indeterminate   Sentences  adapted  to  European  Con- 
ditions      301 

§  96.   Difficulties  in  the  Extension  of  the  System 305 

§  97.   The  Personal  and  Religious  Factors  in  Reform 308 

INDEX  315 


THE  INDIVIDUALIZATION  OF 
PUNISHMENT 

CHAPTER  I 

THE  STATEMENT  OF  THE  PROBLEM 

§  1.  Sociological  and  Psychological  Foundations. 

§  2.  The  Subjective  and  Objective  Aspects  of  Crime. 

§  3.  The  Purpose  of  Punishment:  Zweckstrafe. 

§  4.  Practical  Influences:  The  Jury. 

§  5.  Types  of  Individualization. 

§  6.  Queries  and  Objections:  The  Schools. 

§  7.  Consistencies  and  Concessions  of  Opinion. 

§  8.  The  Origin  of  the  Classic  School. 

§  1.   Sociological  and  Psychological  Foundations 

THERE  is  at  present  a  general  movement  having  as  its 
purpose  to  detach  the  law  from  the  purely  abstract  formulae, 
which,  as  commonly  regarded,  hold  it  aloof  from  living 
issues.  Sooner  or  later  civil  law  will  no  doubt  undergo  such 
a  transformation.  As  yet  the  change  affects  the  field  of 
criminal  law  alone,  and  there  it  has  acquired  a  firm  foothold. 
It  is  evident  why  this  field  was  chosen  for  the  initial  venture. 
Of  the  laws  controlling  the  organization  of  society  the  old- 
est and  most  inalienable  is  that  of  self-protection,  whereby 
each  organism  and  each  group  of  living  creatures  instinctively 
rejects  such  factors  as  refuse  to  submit  to  the  conditions 
of  its  own  existence,  directly  oppose  it,  or  obstruct  its  further 
development.  Criminal  law  may  be  said  to  be  the  formu- 
lation into  a  system  of  positive  legislation  of  such  require- 
ments for  the  self -protection  of  society;  or,  in  other  words, 


2  INDIVIDUALIZATION  OF  PUNISHMENT          [§  1 

it  may  be  said  to  be  an  instrument  of  social  defense,  adapted 
to  the  requirements  of  the  sense  of  justice. 

It  cannot  be  too  constantly  emphasized  that  the  science 
of  sociology  is  something  more  than  the  correlation  of  facts 
of  experience.  Inasmuch  as  it  is  a  social  science,  and,  indeed, 
the  social  science,  it  finds  in  man  at  once  a  determining  factor 
and  the  objective  goal  of  its  pursuit.  It  considers  the  con- 
ditions of  organized  groups.  But  the  laws  which  it  discloses 
have  likewise  a  message  for  the  individual  man,  in  that  the 
individual  must  take  the  initiative  in  their  application. 
Thus,  for  sociology,  man  is  at  once  object  and  subject;  and 
this  applies  not  alone  to  his  specifically  social  relations  but 
to  his  entire  psychological  nature.  It  is  generally  recognized 
that  sociology  finds  its  material  directly  in  history  and  psy- 
chology, but  until  recently  psychology  has  been  called  upon 
only  for  the  explanation  of  the  interactions  of  one  man  upon 
another  ;  and  such  a  restricted  psychology  is  wholly  in- 
adequate. The  interpretation  of  social  reactions  requires 
a  close  study  of  the  complete  man,  with  his  distinctive  and 
individual  psychology.  In  the  depths  of  human  nature  lies 
the  latent  spark  which  becomes  the  motive  force,  insigni- 
ficant at  the  outset  but  momentous  in  its  issues.  Here  is 
to  be  found  the  origin  of  man's  personal  development  as 
well  as  of  his  reactions  upon  others;  here  also  lies  the 
origin  of  that  other  life,  which  is  part  of  the  individual,  yet 
which  each  individual  develops  only  in  his  relations  with 
others  and  which  constitutes  his  participation  hi  the  social 
organism.1 

In  so  far  as  the  germ  of  human  evolution  is  to  be  found 

1  See  the  excellent  lectures  delivered  by  M.  Tarde  in  October,  1897,  at 
the  College  of  Social  Sciences,  from  which  source  I  have  borrowed  several 
conceptions  and  phrases.  These  lectures  have  been  published  under  the 
title  "Lea  Lois  sociales"  (F.  Alcan,  last  edition  1907).  [English  translation 
by  H.  C.  Warren,  London  and  New  York,  1899.] 


§2]  THE  STATEMENT  OF  THE  PROBLEM  3 

in  the  psychology  of  man,  it  may  be  held  that  the  sense  of 
justice  is,  of  all  the  inherent  human  instincts,  the  deepest, 
the  most  tenacious,  and  the  most  distinctive.  The  tenacity 
of  this  sentiment  appears  in  that  it  persists  even  among 
the  criminal  classes,  among  those  who  presumably  have 
discarded  all  notions  of  it.  They  associate  more  or  less 
transiently  in  bands  or  small  gangs  and  hold  themselves 
subject  to  laws  based  upon  the  sense  of  justice.  Such  adop- 
tion of  law  and  regulation,  which  is  the  essential  foundation 
of  organized  life,  is  found,  not  alone  among  those  banded 
together  for  a  purpose,  but  even  among  those  who  resist  the 
laws  of  society.  The  sentiment  appears  in  their  insistence 
upon  a  fair  division  of  the  spoils,  in  holding  to  their  word 
of  honor,  in  their  legitimized  sanction  of  occasional  betrayals, 
—  all  these  represent  the  expression  of  the  sense  of  justice. 
Their  mutual  relations,  their  language,  and  such  convic- 
tions as  these  criminals  retain,  reflect  the  same  sense  of  innate 
justice  that  prescribes  for  society  what  is  due  to  the  in- 
dividual in  his  relations  with  others. 

Criminology  must  accordingly  consider  the  essentially 
social  nature  of  man  as  well  as  his  individual  character; 
and  it  cannot  neglect  so  important  a  factor  of  human  psy- 
chology as  the  sense  of  justice.  Accordingly  criminal  law 
may  be  defined,  with  sufficient  precision  and  definite- 
ness,  as  the  sociology  of  crime  adapted  to  the  sense  of 
justice. 

§  2.  The  Subjective  and  Objective  Aspects  of  Crime 

It  is  the  purpose  of  a  relatively  recent  school  —  the 
Italian  —  to  reduce  criminal  law  to  an  instrument  of  so- 
cial protection  and  to  regard  it  merely  as  a  reaction  to  the 
sociological  forces  conditioning  crime.  Before  proceeding 
further,  it  is  well  to  face  this  position  definitely,  and  to 


4  INDIVIDUALIZATION  OF  PUNISHMENT          [§  2 

show,  along  with  the  measure  of  support  which  it  finds  in 
practice,  the  essential  inadequacy  and  chief  defects  of  this 
Italian  school. 

The  distinctive  purpose  of  criminal  law  would  thus  be- 
come the  economics  of  social  defense;  but  this  formula  of 
the  Italian  school  should  be  amended  by  adding:  an  econo- 
mics of  social  defense  adapted  to  the  demands  of  the  sense 
of  justice.  That  criminal  law  reflects  the  sociology  of  crime 
is  sufficiently  clear;  but  the  sociology  must  be  such  as  leaves 
the  heights  of  abstract  science  and  becomes  adjusted  to 
common  sentiment,  —  to  ordinary  notions  that  circulate 
in  the  body  social,  to  the  sense  of  justice,  the  distinction 
between  good  and  evil,  and  accepted  views  regarding  human 
responsibility.  All  this  applies  no  less  to  the  conception  of 
crime  than  to  criminal  law. 

Crime  has  been  regarded  as  falling  to  pathology.  It  is 
better  to  refer  it  to  sociology,1  for  a  social  product  it  un- 
deniably is.  Crime  is  a  social  phenomenon  in  the  nature 
of  a  violation  of  a  generally  recognized  social  obligation. 
It  is  an  outgrowth  of  social  institutions,  but  consists  of  an 
individual  disregard  of  the  rights  of  justice.  Criminal  law 
occupies  a  distinctive  position  in  the  group  of  the  social 
sciences  ;  and  every  general  system  of  sociology  must  in- 
clude an  analysis  of  the  social  protective  function. 

The  entire  province  of  criminal  law  must  be  reviewed  from 
this  new  approach.  A  comprehensive  and  constructive  sur- 
vey of  the  data,  together  with  an  exposition  of  principles, 
must  be  directed  to  the  critical  problem  of  criminology, 
which  is  the  problem  of  the  individualization  of  punishment. 

The  first  step  is  to  indicate  how  the  problem  arises  and 
what  are  its  main  features.  Logically  defined,  crime  is  a 
violation  of  the  legally  established  order.  Punishment  is 
1  See  Makarewicz,  "Das  Wesen  dea  Verbrechens"  (Vienna.  1896). 


§2]  THE  STATEMENT  OF  THE  PROBLEM  5 

the  penalty  of  such  transgression  of  the  law  and  may  be 
looked  upon  as  a  reparation,  a  kind  of  compensation  through 
the  suffering  of  the  individual  for  the  injury  that  has  been 
done;  as  such  it  is  what  the  Germans  call  a  Vergeltungsstrafe. 
When  thus  considered,  it  is  the  practical  consequence  of  a  crime 
that  attracts  attention,  by  which  is  meant  the  social  disturb- 
ance that  has  been  occasioned,  the  resulting  individual  or  col- 
lective harm  of  which  society  reflexly  feels  the  effect. 

To  express  these  relations  in  legal  language  technical 
phrases  have  been  adopted.  In  discussion  the  external  as- 
pect of  the  criminal  act  is  referred  to  as  the  "materiality," 1 
or  circumstanceslof  the  crime;  and  in  so  far  as  we  have  come 
under  the  influence  of  this  terminology,  as  used  in  scientific  dis- 
cussions, we  speak  of  it  as  the  "objective"  side  of  the  crime. 

It  is  obvious  that  a  school  which  regards  only  the  con- 
sequences of  an  act  —  the  "  materiality  "  of  the  crime,  or 
the  injury  done  —  disregards  the  personality  of  the  criminal 
agent;  for  this  factor  does  not  affect  the  crime  itself.  Who- 
ever the  criminal,  the  consequences  of  his  crime  remain  the 
same.  The  punishment  is  not  the  expiation  imposed  upon 
the  individual  criminal;  it  is  the  compensation  for  the  injury 
done,  and  this  remains  the  same  whoever  the  agent  may  be, 
and  whatever  may  be  the  nature  of  his  personal  disposition. 
The  law  sets  the  punishment  in  accordance  with  the  injury 
done;  by  which  is  understood  only  the  objective  injury.  It 
sentences  to  months  or  years  of  imprisonment,  or  to  penal 
servitude,  or  even  to  death,  according  to  the  material  gravity 
of  the  crime.  The  person  of  the  criminal  is  not  considered. 
In  the  eyes  of  criminal  justice  the  offender  is  but  an  ab- 
stract, nameless  individual,  as  later  he  becomes  a  mere 
number  in  the  work-yards  of  the  jail  or  penitentiary. 

1  This  French  term  has  no  equivalent  in  Anglo- American  law.  It  signifies 
the  abstract  quality  of  the  act  in  itself,  apart  from  the  mental  or  moral  state 
of  the  doer.  ED. 


6  INDIVIDUALIZATION  OF  PUNISHMENT          [§  2 

Thus  conceived,  criminal  law  becomes  a  wholly  abstract 
construction,  taking  cognizance  only  of  the  crime  while 
ignoring  the  criminal.  In  this  familiar  view  a  crime  becomes 
a  legal  abstraction,  after  the  manner  of  a  geometrical  con- 
struction or  an  algebraic  formula.  Upon  this  abstraction 
the  law  develops  its  procedure  and  argument.  Every 
technical  science  has  its  formulae,  as  typically  in  algebra 
terms  are  added,  subtracted,  or  multiplied.  But  the  legal 
formula  lacks  one  essential  term,  and  that  is  the  intent.  This 
may  be  represented  by  A—Bt  A  standing  for  the  crime  as  a 
whole,  as  completely  accomplished,  and  B  the  factor  which 
it  lacks  of  completion.  Such  penal  codes  as  the  Italian, 
which  aim  to  be  strictly  logical  and  quantitatively  adaptable, 
would  lessen  the  punishment  in  view  of  such  consideration. 
If  a  represents  the  entire  punishment  corresponding  to  the 
factor  A,  which  is  the  entire  crime,  and  b  the  fraction  of  the 
punishment  in  proportion  to  what  the  crime  lacks  of  accom- 
plishment, the  punishment  for  the  attempt  would  be  repre- 
sented by  a— b,  just  as  objectively  the  crime  is  expressed  by 
the  formula  A—B.  What  is  true  of  the  intent  would  be 
proportionately  true  of  joint  complicity  ;  in  which  case, 
instead  of  the  operation  of  subtraction,  an  equation  is 
assumed,  A  =  B  =  C,  with  correspondingly  identical  punish- 
ments. In  the  case  of  a  joint  crime,  the  crime  of  each  ac- 
complice may  be  assumed  to  be  the  same,  until  by  a  process 
of  civil  law  a  more  accurate  verdict  is  reached.  Disregarding 
the  nature  of  the  accomplices  and  their  different  intentions 
and  their  several  wills,  their  participation  is  equalized  in 
their  common  crime  ;  and  they  are  alike  subject  to  the  same 
degree  of  punishment  under  the  principle  that  the  same 
crime  deserves  the  same  punishment.1  If  objection  be  made 
to  this  theory  on  the  ground  that  it  makes  the  procedure 
1  French  Penal  Code,  art.  59;  and  the  proposed  revision,  art.  82. 


§  2]  THE  STATEMENT  OF  THE  PROBLEM  7 

fictitious  and  artificial,  recourse  may  be  had  to  a  law  which 
is  regarded  as  more  equitable  and  which,  instead  of  equal- 
izing, distinguishes  the  greater  and  the  less,  and  reduces 
the  punishment  of  an  accomplice,  recognizing  that  his  part 
is  but  accessory  to  the  principal  crime.1  But  the  quantitative 
conception  persists. 

Examples  could  readily  be  multiplied,  but  it  is  sufficiently 
evident  that  underlying  these  equations  and  manipulations 
of  formulae  there  are  involved  living  realities,  human  beings 
whose  moral  and  social  future  constitutes  a  problem.  While 
admitting  that  the  sacrifice  of  individuals  may  be  of  slight 
importance  in  comparison  with  the  interests  of  social  order, 
it  is  not  to  be  overlooked  that  society  itself  suffers  through 
the  haphazard  application  of  a  mathematical  type  of  ad- 
ministration; for  such  punishment  acts  blindly,  running 
the  risk  of  setting  free  the  incorrigible  and  the  pervert  and 
penalizing  the  semi-responsible  and  the  chance  offender. 
The  injustice  of  the  situation  is  aggravated  by  the  promis- 
cuous intercourse  of  the  prison  that  itself  serves  to  make 
perverts  and  to  enlist  these  several  classes  in  a  career  of 
crime. 

Be  this  as  it  may,  the  legal  and  objective  view  of  crime, 
despite  its  many  concessions,  remains  the  classic  conception, 
or  at  any  rate  what  is  still  called  the  classic  conception  of 
crime;  for  as  a  thorough-going  conception  this  classic  view 
is  hardly  more  than  a  tradition  of  the  past.  We  have  indeed 
reached  a  point  of  development  at  which  the  several  schools 
are  quite  ready  to  assimilate.  None  the  less  the  distinctive 
conceptions  of  the  classic  school,  namely,  the  tendency  to 
consider  the  criminal  action  hi  its  materiality  and  from  its 
objective  side,  and,  secondly,  its  distinctive  position  with 
reference  to  responsibility,  still  merit  consideration.  Ac- 
1  For  example,  the  Italian  Penal  Code,  art.  64. 


8  INDIVIDUALIZATION  OF  PUNISHMENT          [§  3 

cording  to  this  view  there  would  be  only  crimes  and  no 
criminals  ;  somewhat  as  if  a  physician  were  to  maintain 
that  there  are  only  diseases  and  no  patients.  The  two 
formulae  are  of  like  applicability. 

§  3.  The  Purpose  of  Punishment:  "  Zweckstrafe  " 

Opposed  to  this  fundamentally  legal  view  another  has 
gradually  gained  ground  and  may,  in  its  development,  itself 
become  classic.  It  holds  that  punishment  is  to  be  deter- 
mined not  by  the  material  gravity  of  the  crime,  not  by  the 
injury  done,  but  by  the  nature  of  the  criminal.  It  would 
indeed  be  a  violation  of  justice  if  under  pretext  of  justice 
useless  suffering  should  be  inflicted.  The  legitimate  pur- 
pose of  punishment  is  to  make  of  the  criminal  an  honest 
man  if  that  be  possible  ;  or,  if  not,  to  deprive  him  of  the 
chance  of  doing  further  harm.  For  the  view  that  punish- 
ment is  an  infliction  of  injury  for  injury  there  is  substituted 
the  view  that  punishment  is  a  moral  instrument,  a  means 
of  regeneration  for  the  individual  as  well  as  of  protection 
for  society.  Punishment  has  thus  a  social  end  directed  to 
the  future,  while  hitherto  it  was  regarded  only  as  the  neces- 
sary consequence  of  a  past  act.  It  was  appraised  and  de- 
scribed in  terms  of  the  crime  committed  without  reference 
to  future  issues;  and  this  attitude  resulted  in  making  habitual 
criminals. 

Where  formerly  only  the  accomplished  deed  was  consid- 
ered, the  purpose  of  punishment  is  now  taken  into  account. 
Such  purpose  is  not  to  inflict  a  punishment  for  what  has 
been  done,  as  if  in  satisfaction  of  a  sentiment  of  individual 
or  collective  vengeance,  but  to  bring  about  a  certain  result. 
The  Germans  call  this  aspect  of  punishment  (in  contrast 
to  the  "  Vergeltungsstrafe, "  which  in  the  classic  view  was 
a  punishment  by  way  of  compensation  or  retribution)  the 


§3]  THE  STATEMENT  OF  THE  PROBLEM  9 

"  Zweckstrafe,"  1  which  we  can  hardly  render  more  closely  than 
by  the  phrase  "punishment  for  a  purpose."  Yet  the  term 
does  scant  justice  to  the  important  movement  inspired  by 
Ihering,  and  to  the  significance  therein  attached  to  the  con- 
ception of  the  final  purpose  ("Zweck"),  the  consideration 
of  which  was  to  reanimate  the  dead  bones  of  the  law.  The 
vital  principle  of  every  organic  function  is  this  same  "Zweck" 
or  final  purpose  ;  and  this  is  equally  true  of  the  law.  The 
function  of  punishment  must  accordingly  be  directed  to 
its  social  purpose  and  adapted  to  that  purpose  as  an  instru- 
ment is  adapted  to  the  operation  in  view.  Accordingly 
it  is  the  future  and  not  the  past,  not  the  crime  committed, 
that  sets  the  goal  and  the  purpose  sought. 

Consequently  punishment  for  each  individual  case  should 
be  so  adjusted  to  its  purpose  as  to  produce  the  largest  pos- 
sible return.  It  cannot  be  strictly  and  rigidly  determined  in 
advance,  nor  inflexibly  regulated  by  the  law.  The  purpose 
of  punishment  is  an  individual  one  and  is  to  be  attained 
through  a  policy  appropriate  to  the  circumstances  of  the  case, 
not  by  the  application  of  an  abstract  law,  that  ignores  the 
varieties  of  the  cases  considered.  Such  is  the  "Zweckstrafe," 
a  punishment  characterized  by  its  purpose,  as  opposed  to 
the  "Vergeltungsstrafe,"  a  punishment  crystallized  as  a 
mechanical  and  exact  retribution,  ineffective  in  regard  to 
the  past  and  without  influence  upon  the  future.  If  this 
conception  of  punishment,  which  looks  to  the  future  for 
the  realization  of  a  definite  purpose,  be  accepted,  it  neces- 
sarily follows  that  the  punishment  must  be  adapted  to  the 
nature  of  the  individual  to  whom  it  is  applied.  If  the  crimi- 
nal is  not  fundamentally  a  pervert,  the  punishment  should 
not  contribute  to  his  further  perversion.  It  should  serve 

1  For  bibliography  see  Von  Liszt,  "Lehrbuch  des  Deutschen  Strafrechts  " 
(edition  1905,  §  15). 


10  INDIVTOUALIZATION  OF  PUNISHMENT          [§  4 

for  his  regeneration  and  his  rehabilitation.  If  the  criminal 
is  an  incorrigible,  the  interests  of  society  demand  his  punish- 
ment as  a  measure  of  protection  and  of  radical  prevention. 
Such  adaptation  of  punishment  to  the  individual  is  now 
known  as  the  individualization  of  punishment.  As  in  medi- 
cine it  has  been  maintained  that  there  are  no  diseases  but 
only  patients,  so  one  is  tempted  to  say  that,  strictly  speak- 
ing, there  are  no  crimes  but  only  criminals. 

§  4.  Practical  Influences:  the  Jury 

The  movement  for  reform,  which  has  now  assumed  a 
distinctively  scientific  character,  began  as  a  purely  human- 
itarian reaction,  prompted  by  a  sense  of  popular  and  senti- 
mental justice.  It  was  the  jury  that  first  practiced  such 
individualization  and  did  so  constantly  without  knowing 
it.  It  was  however  applied  casually  and  inopportunely,  and 
that  is  why  science  now  attempts  to  regulate  what  is  still 
only  the  issue  of  an  empirical  procedure.  While  the  jury- 
system  cannot  be  unreservedly  commended,  its  initia- 
tive in  this  movement  (which  goes  back  to  its  first  ap- 
plication in  the  French  Penal  Code)  should,  in  justice,  be 
acknowledged. 

The  law  considers  only  the  crime,  and  it  ruthlessly  and 
rigidly  applies  the  formulated  punishment,  disregarding 
the  criminal.  The  jurymen  stand  face  to  face  with  a  man 
whose  life  and  honor  they  hold  in  their  hands;  thus  con- 
fronted they  can  hardly  remain  indifferent  to  his  motives, 
his  antecedents,  and  his  former  life.  They  become  so  wholly 
absorbed  in  the  impression  of  the  individual  that,  time  and 
again,  in  defiance  of  the  law,  they  forget  the  crime;  and 
thus  crimes  come  to  be  distinguished  by  their  tendency 
or  their  failure  to  enlist  the  sympathies  of  the  jury.  There 
are  classes  of  crimes  in  which  the  jury  always  ignores  the 


§5]  THE  STATEMENT  OF  THE  PROBLEM  11 

facts  and  is  moved  by  sentiment,  by  the  sway  of  the  instinc- 
tive and  possibly  irresistible  passions  from  which  the  crime 
resulted.  Such  crimes  have  come  to  be  called  crimes  of 
passion.  For  them  the  law  prescribes  punishments  no 
differently  than  for  other  crimes  and  equally  ignores  their 
nature.  The  jury  circumvents  the  law  and  brings  in  an 
acquittal,  thereby  favoring  individualization  in  so  far  as 
it  takes  account  of  the  individual.  It  often  applies  this 
policy  poorly,  and  sometimes  very  unjustly.  However, 
it  reveals  loyalty  to  a  psychological  impulse  as  well  as  to 
a  principle;  and  it  aims  to  place  the  consideration  of  the 
individual  above  that  of  the  deed. 

This  tendency  began  with  the  introduction  of  juries  under 
the  Empire  and  the  Restoration.  From  1824  on,  one  of 
the  first  laws  reforming  the  penal  code  admitted  extenuating 
circumstances  for  certain  crimes;  not  for  all,  but  for  those 
most  likely  to  result  in  acquittals,  often  of  a  notorious  nature. 
Extenuating  circumstances  are  a  form  of  individualization 
of  punishment.  Their  introduction  in  our  criminal  laws 
was  due  to  the  influence  of  the  jury.  In  1824,  in  the  Court 
of  Assizes,  it  was  the  court  itself,  that  is,  the  judges,  who 
were  charged  with  the  determination  of  the  extenuating 
circumstances.  But  juries  defied  judges,  and  continued 
to  acquit.  In  1832  the  jury  was  empowered  to  determine 
extenuating  circumstances;  nevertheless,  in  crimes  com- 
manding sympathy,  they  acquitted  as  before.  This  again 
was  individualization,  but  it  was  badly  applied  and  purely 
empirical,  at  times  somewhat  emotional  as  were  the  crimes 
concerned. 

§  5.  Types  of  Individualization 

Neither  science  nor  justice  was  thus  served;  and  hence, 
under  the  influence  of  the  former,  there  arose  the  problem 


12  INDIVIDUALIZATION  OF  PUNISHMENT         [§  5 

of  the  individualization  of  punishment.  It  is  true  that 
science  was  not  first  in  realizing  the  situation;  but  facts 
stronger  than  the  law,  jointly  with  public  opinion,  ever 
impressed  by  facts,  forced  the  problem  by  inquiring:  On 
what  basis  shall  the  individualization  of  punishment  pro- 
ceed ?  This  question,  in  turn,  implied  a  second,  closely 
allied  to  it:  By  whom  shall  the  individualization  of  punish- 
ment be  made  ?  Shall  it  be  done  in  advance  by  the  law  ? 
If  so,  it  proceeds  upon  presumption,  in  ignorance  of  the 
individuals  concerned,  and  upon  the  judgment  of  them 
through  their  actions.  It  groups  them  according  to  pre- 
scribed classes,  and  undertakes  approximately  to  set  the 
punishment  and  to  adjust  it  to  the  individual  criminal. 
This  would  be  a  system  of  legal  individualization. 

On  the  other  hand  the  judge  is  confronted  not  by  an  ab- 
stract and  nameless  individual,  but  by  an  actual  criminal 
conscious  of  his  crime  and  its  significance.  Shall  the  judge 
then  undertake  the  adjustment  of  the  punishment  to  the 
measure  of  surviving  morality  still  available  for  reform 
and  moral  reinstatement  ?  This  would  be  a  system  of 
judicial  individualization. 

Or  shall  we  go  farther  still  and  leave  the  individualization 
to  the  prison  authorities,  on  the  ground  that  they  can 
observe  the  prisoner  in  confinement,  carefully  adjust  the 
punishment  to  the  progress  made,  and  hi  due  course  omit 
it  when  they  consider  the  reform  established  and  rehabili- 
tation secure  ?  For  it  may  be  found  that  the  judge  is  not 
hi  a  favorable  position  to  appreciate  the  criminal,  because 
he  knows  nothing  of  him  but  the  single  fact  of  the  crime 
committed;  and  though  he  knows  this  with  all  its  accom- 
panying circumstances,  he  has  not  the  basis  for  anticipating 
the  probable  effect  of  punishment.  This  would  be  a  system 
of  administrative  individualization. 


§6]  THE  STATEMENT  OF  THE  PROBLEM  13 

§  6.    Queries  and  Objections:  the  Schools 

Such  are  the  important  issues  ;  yet  there  is  another, 
more  important  than  any  such  question  of  application, 
which  is  beret  with  conscientious  doubts.  The  classic  con- 
ception sets  forth  an  important  truth,  or  to  speak  more 
accurately,  two  truths,  which  should  be  clearly  grasped. 
The  first  is  that  in  itself  and  independently  of  the  personality 
of  the  criminal  the  evil  done  carries  an  actual  injury  to  the 
community  which  is  the  victim  of  the  crime.  This  injury, 
quite  apart  from  an  expiation  in  any  religious  or  philo- 
sophical sense,  requires  a  satisfaction  demanded  by  the 
public  conscience.  Now  if  the  consideration  of  the  individual 
prevails  above  the  reparation,  will  not  the  policy  encourage 
others  to  continue  in  a  criminal  career  ?  And  for  society, 
will  this  not  produce  a  moral  disorder  which,  like  a  con- 
tagious disease,  tends  to  spread  ?  An  additional  query 
or  objection  applies;  namely,  the  difficulty  of  divesting 
the  ordinary  conception  of  justice  from  a  kind  of  abstract 
mathematical  equality.  Accordingly,  if  two  individuals 
receive  different  punishments  for  the  same  offense  or  are 
differently  treated,  it  would  seem  as  though  equity  had 
been  disregarded,  and  that  caprice  had  replaced  justice. 
How  shall  these  exacting  requirements  demanded  by  society 
be  reconciled  to  the  equally  indispensable  necessity  of  taking 
account  of  the  individual  ?  How  shall  they  be  reconciled 
to  the  like  requirements  of  proportioning  the  punishment, 
not  to  the  objective  crime  committed  or  to  the  material 
injury  done,  but  to  the  inherent  criminality  of  the  criminal, 
to  such  latent  or  real  criminality  as  makes  him  dangerous 
to  his  fellowmen  ?  How,  in  brief,  shall  they  be  adjusted  to 
the  degree  of  morality,  or,  if  we  may  say  so,  of  normality, 
and  to  the  prospects  of  regeneration  which  it  holds  out  ? 


14  INDIVIDUALIZATION  OF  PUNISHMENT          [§  6 

Such  are  the  several  aspects  of  this  very  large  problem  of 
the  individualization  of  punishment. 

But  before  considering  the  problem  itself,  it  is  well  to 
guard  against  certain  impressions  that  commonly  arise  when 
we  classify  systems,  divide  them  into  schools,  and  give  them 
specific  labels.  We  naturally  emphasize  the  central  idea 
in  each  school,  and  push  it  to  the  extreme.  In  consequence 
of  such  theoretical  abstraction,  we  unjustly  and  unwisely 
set  barriers  between  one  school  and  another.  It  is  however 
fortunate  that  the  common  ground  of  practice  serves  to 
bring  the  schools  together.  The  practical  solutions  of  the 
one  are  accepted  by  the  other.  The  theoretical  principles 
remain;  but  practical  measures  become  the  common  prop- 
erty of  all;  and  that  is  the  essential  point.  The  several 
reservations  and  shades  of  opinion  should  be  taken  at 
their  true  worth,  for  a  name  or  a  label  or  an  enroll- 
ment under  a  different  banner  may  be  enough  to  prevent 
a  mutual  understanding  among  those  pursuing  the  same 
purposes. 

There  are  those  who  by  reason  of  their  belief  in  respon- 
sibility and  freedom  —  and  fortunately  such  still  exist  — 
regard  themselves  as  forever  bound  by  these  principles  to 
the  same  camp,  as  solemnly  sworn  to  the  same  platform; 
and  accordingly  they  refuse  to  accept  any  measures  of  social 
protection  proposed  by  an  opposite  school.  Yet  there  is  a 
decided  tendency  for  widely  separated  partisans  to  meet  in 
agreement  upon  matters  of  practical  concern  —  a  desirable 
issue  that  should  find  further  favor  and  support.  Such  con- 
cessions are  necessary  wherever  there  is  something  definite 
to  be  done.  The  removal  of  barriers  and  misunderstandings 
becomes  a  duty  on  the  part  of  those  who  are  in  a  position  to 
facilitate  such  closer  approach.  However  inadequate  they 
may  consider  themselves,  it  devolves  upon  them  to  set  to 


§7]  THE  STATEMENT  OF  THE  PROBLEM  15 

work  without  too  much  concern  for  the  past.  They  should 
express  themselves  fearlessly  and  not  be  troubled  by  a  sense 
of  insufficient  authority ;  nor  should  they  set  forth  their 
personal  shortcomings  as  an  excuse  for  silence.  We  have 
reached  a  period  of  transition  in  which  older  conceptions 
are  confused  and  traditional  notions  no  longer  satisfy;  yet 
it  is  not  feasible  to  hold  back  and  wait  until  other  measures 
shall  have  been  tried,  or  newer  views  definitely  tested  and 
universally  recognized.  There  is  danger  of  waiting  too 
long,  for,  while  waiting,  the  facts  demand  and  must  receive 
attention.  If  the  formulae  of  other  times  are  no  longer 
adequate  new  solutions  must  be  provisionally  attempted. 
Through  co-operative  effort  a  more  advanced  position 
will  be  attained.  Let  each  contribute  his  share.  When 
the  old  habitation  is  crumbling  it  will  not  do,  in  false 
modesty,  to  remain  under  cover  of  a  roof  that  threatens 
to  fall;  it  is  far  better  to  build  a  provisional  shelter. 
If  every  one,  without  sacrifice  of  individual  belief,  is 
willing  to  combine  with  the  others,  the  structure  of  the 
future  will  promptly  take  shape  and  serve  as  a  common 
shelter. 

Instances  and  evidences  of  this  commendable  freedom 
from  dogmatism  could  readily  be  cited.  It  is  true  that  we 
pass  from  one  inconsistency  to  another,  but  life  demands 
such  sacrifice,  and  history  is  but  a  striking  demonstration, 
notably  in  terms  of  human  conduct  and  social  laws,  of  the 
persistent  failure  of  the  absolute  and  of  the  alleged  principles 
which  it  embodies. 

§  7.  Consistencies  and  Concessions  of  Opinion 

Let  us  take  the  large  question  of  responsibility,  which 
for  a  long  time  was  the  point  of  dissension.  Every  good 
determinist,  in  order  to  be  consistent,  felt  it  necessary  to 


16  INDIVIDUALIZATION  OF  PUNISHMENT          [§  7 

deny  the  validity  of  the  concept  of  responsibility ;  and  it 
would  appear  that  nowadays,  his  inconsistency  leads  him 
to  abandon  his  position  and  to  accept  the  postulates  of  the 
positivist  Italian  school.  Such  pardonable  inconsistencies 
appear  on  all  sides ;  and  we  are  beginning  to  recognize  the 
futility  of  demonstrations  and  syllogisms,  which,  however 
engaging  as  mental  exercises,  have  never  suppressed  a  new 
idea  nor  saved  an  old  one.  Man  does  not  live  by  logic  but 
by  practical  needs;  yet  still  more  he  lives  by  conviction 
and  personal  faith. 

Let  us  consider  a  few  of  these  alleged  inconsistencies. 
Eminent  scholars  and  sociologists  (such  as  M.  Tarde,  to 
mention  the  most  distinguished)  accept  the  strict  applica- 
bility of  the  law  of  causality  to  the  psychological  order  of 
things ;  yet  they  firmly  defend,  in  the  sociological  field,  the 
validity  of  the  conception  of  responsibility.1  Others  (such 
as  Merkel  in  Germany)  are  loyal  determinists,  and  retain 
the  traditional  views  of  the  classical  school.  In  regard  to 
the  nature  of  punishment  they  hold  to  the  notion  of  penalty 
and  of  reparation  in  the  sense  of  rigid  equity  for  the  injury 
done.2  More  recently  Makarewicz 3  in  a  masterly  presenta- 
tion (hi  Liszt's  Zeitschrift)  argues  that  the  supposed  antag- 
onism between  the  classical  and  the  positivist  school  in 
matters  of  criminal  law  may  almost  be  reduced  to  a  question 
of  words ;  and  that  on  all  practical  issues  the  two  are  con- 

1  See  M.  Tarde,  "  Philosophic  penale,"  ch.  iii. 

2  See  Merkel,  "Lehrbuch  des  deutschen  Strafrechts,"  §  28;  and  Merkel, 
"Vergeltungsidee   und   Zweckgedanke   im   Strafrecht"    (Strassburg,    1892). 
On  the  same  subject,  consult    Mittelstadt,  "Schuld  und  Strafe,"  an  essay 
published  in  the  German  review,  Der  Gerichtssaal  (Stuttgart),  Vol.  XL VI, 
pp.  237,  387,  and  Vol.  XL VII,  p.  1;   as  opposed  to  Merkel  and  Mittelstadt, 
consult  the  important  work  of  Liszt,  "Die  Deterministischen  Gegner  der 
Zweckstrafe,"  in  the  Zeitsch.  f.  d.  ges.  Str.  W,,  Vol.  XIII,  p.  325. 

3  Makarewicz,  "Klassizismus  und  Positivismus  in  der  otrafrechtswissen- 
schaft"  (Zeitsch.  f.  d.  ges.  Str.  W.,  1897,  Vol.  XVII,  p.  590). 


§  7]  THE  STATEMENT  OF  THE  PROBLEM  17 

verging,  and  will  presently  be  in  accord.1  Yet  the  classi- 
cists, or  "spiritualists,"  true  to  the  conceptions  of  freedom 
and  responsibility,  admitted  extenuating  circumstances,  and 
thereupon  sponsored  an  extensive  movement  in  behalf  of 
prison  reform,  based  upon  the  hope  of  the  moral  regeneration 
of  the  criminal.  Ultimately  they  were  influential  in  estab- 
lishing in  France  the  law  of  parole,  which  Germany,  at  least 
officially,  had  long  resisted,  and  which  certainly  is  one  of 
the  most  distinctive  measures  in  accord  with  the  Italian 
school. 

As  a  dissenting  view  mention  should  be  made  of  the  French 
law  of  1885  on  the  deportation  of  hardened  offenders,  which 
considers  them  as  hopeless  and  proposes  the  elimination  of 
incorrigibles  as  a  radical  law  of  social  defense.  These  two 
French  laws,  it  is  well  to  repeat,  are  but  the  application  in 
constructive  legislation  of  the  platform  which  defines  the 
position  of  the  new  school.  On  the  one  hand  it  proclaims 
the  policy  of  aiding  first  offenders  to  re-establish  them- 
selves, and,  on  the  other,  the  policy  of  segregating  and  elim- 
inating such  as  are  criminals  by  profession  or  delinquents 
by  nature  and  psychological  condition;  that  is,  it  favors 
liberal  concessions  for  those  momentarily  led  astray  and 
ruthless  severity  for  those  fundamentally  perverted.  Our 
law  of  parole  realizes  liberal  concessions  for  those  momen- 
tarily led  astray ;  and  our  law  of  deportation  realizes  ruth- 
less severity  for  those  fundamentally  perverted.  Here  we 
find  the  very  position  of  the  Italian  school,  but  find  it  applied 
by  the  classicists. 

From  this  preliminary  survey  a  very  assuring  conclusion 
emerges.  In  Germany  there  are  determinists  and  orthodox 

1  See  analogous  views  in  the  study  of  M.  Cuche,  "De  la  possibility  pour 
l'£cole  classique  d'organiser  la  repression  penale  en  dehors  de  libre  arbitre  " 
(Annalet  de  I'univerrite  de  Grenoble,  Vol.  IX,  1897.  p.  509.  seq.). 


18  INDIVIDUALIZATION  OF  PUNISHMENT         [§  8 

positivists  who  uphold  the  classic  conceptions  of  punishment ; 
and  in  France  there  are  idealists  or  "spiritualists"  —  if  not  in 
a  philosophic  yet  in  a  religious  sense,  as  loyal  to  creed  — 
who  do  not  hesitate  to  go  far  in  the  direction  of  the  pro- 
posed reforms.  However  it  is  to  be  interpreted,  this  conces- 
sion serves  to  break  down  the  barriers  of  philosophical 
systems,  and  to  establish  a  common  interest  in  the  field 
alike  of  justice  and  of  the  needs  of  society. 

§  8.   The  Origin  of  the  Classic  School 

We  may  now  proceed  to  explain  briefly  the  position  of 
what  is  called  the  classic  school,  —  the  traditional  school 
to  which  is  due  the  French  Penal  Code;  but  before  doing 
so  it  will  be  well  to  show  its  origins  and  approach  it  through 
a  brief  history  of  its  teachings.  How  did  this  purely  judicial 
conception  of  punishment  and  its  application  originate? 
By  what  evolution  of  ideas  did  it  proceed  ?  It  has  resulted 
in  a  view  of  the  criminal  act  as  an  abstraction,  —  as  a  sort 
of  algebraic  quantity  independent  of  the  personality  of  the 
offender,  —  and  in  a  view  of  punishment  as  something  to 
be  determined  by  the  external  circumstances  of  the  act, 
without  consideration  of  the  nature  of  the  personality  of 
the  human  being  whose  fate  is  involved.  This  conception, 
which  the  rational  spirit  of  the  early  nineteenth  century 
viewed  with  pride,  the  present  century  is  likely  to  regard  as 
astounding;  particularly  in  view  of  the  fact  that  it  is  the 
rationalists  who  are  abandoning  it,  and  the  "spiritualists" 
who  are  anxious  to  retain  it  as  the  motto  of  their  philosoph- 
ical faith.  Let  us  proceed  to  consider  the  origin  of  this 
position,  the  historical  evolution  which  resulted  in  the  arti- 
ficial and  fictitious  constructions  of  criminal  law.1 

1  The  tendency  of  criminal  law  towards  the  individualization  of  punish- 
ment has  advanced  since  1898.  It  appears  in  the  writings  of  Prins,  "Science 


§  8]  THE  STATEMENT  OF  THE  PROBLEM  19 

penale  et  droit  positif"  (1889);  and  in  the  volume  of  M,  Cuche,  "Traite" 
de  science  et  legislation  penitentiaires"  (1905).  Attention  should  likewise 
be  called  to  an  English  volume  of  great  practical  interest,  which  is  directly 
inspired  by  the  idea  of  individualization:  "Criminals  and  Crime,"  by  Sir 
Robert  Anderson  (London,  1907).  In  addition,  in  the  proceedings  of  the 
Congres  de  1'Union  internationale  du  droit  penal,  see  the  discussions  at  the 
meeting  at  St.  Petersburg,  1902,  particularly  the  address  of  M.  Garraud,  on 
the  "Tendances  contemporaines  de  la  science  du  droit  penal"  (Bulletin  de 
I'Un.  inter,  de  droit  penal.  Vol.  11).  For  legislation,  see  the  new  Norwegian 
Penal  Code,  in  effect  from  January  1,  1904  (Paris,  Rousseau,  1903);  and  its 
important  preface  by  M.  Gargon.  It  may  be  mentioned  in  this  connection 
that  a  Swiss  Penal  Code  is  proposed  looking  toward  a  revision,  and  of  date 
1903  (Avant-projet  de  Code  penal  suisse,  June,  1903,  Berne,  Stoempfle). 
Since  then  there  has  been  still  another;  but  the  new  text  has  not  yet  been 
published. 

An  analogous  reactionary  movement  against  abstract  formulae  and  the 
purely  syllogistic  spirit  is  clearly  indicated  in  the  civil  law.  I  refer  to  the 
newer  legal  interpretations,  which,  since  the  publication  of  M.  Geny's  "  Me- 
thode  d'interpretation  et  Sources  en  droit  priv6  positif"  (1899),  is  making 
headway.  For  several  articles  inspired  by  the  new  point  of  view  see  the 
"Livre  du  centennaire  du  Code  civil"  (Vol.  I).  On  the  entire  movement 
consult  Paid  Van  der  Eycken,  "Methode  positive  de  1'interpretation  juri- 
dique"  (Alcan,  1907). 

Of  interest  are  several  articles  which  appeared  (1908  and  1909)  in  the 
Revue  de  metaphysique  et  de  morale,  notably  two  articles  by  M .  MaUieux, 
"La  methode  des  juris-consultes  (July,  1907);  and  "Le  r61e  de  I'experience 
dans  les  raisonnements  des  juris-consultes  (November,  1907);  also  an  arti- 
cle by  M.  Meynial,  "Du  r&le  de  la  logique  dans  la  formation  scientifique  du 
droit"  (March,  1908). 

I  add  a  reference  to  the  new  Revue  de  psychologic  sociale,  first  issued  in 
June,  1907,  and  which,  as  the  title  indicates,  deals  with  the  problems  of  civil 
and  criminal  law  in  the  spirit  here  characterized. 

In  regard  to  the  contrast  frequently  referred  to  in  this  chapter,  between 
"Vergeltungsstrafe"  and  "  Zweckstrafe,"  see  the  pamphlet  of  Reinhard 
Frank,  "Vergeltungsstrafe  und  Schutzstrafe"  ;  "Die  Lehre  Lombrosos"  : 
Ewei  Vortrage  (Tubingen,  Mohr,  1908). 


§    9.   Introductory:  Private  and  Communal  Punishment. 

§  10.   Primitive  Punishment  as  Penalty  and  as  Expiation:   the  Wergild. 

§  11.  The  Growth  of  Communal  Interests  and  Social  Consciousness:  the 
Religious  Factor. 

§  12.   Early  Views  of  Objective  Crime  and  Subjective  Criminality. 

§  13.   Responsibility,  Freedom  of  the  Will,  and  Sin,  as  determining  Crime. 

§  14.  The  Analysis  of  the  Grounds  of  Punishment;  Responsibility  in  Eccle- 
siastical Law. 

§  15.  Consequences  of  the  Older  Position:  its  Contrast  with  the  Modern 
View. 

§  16.   Early  Types  of  Individualization. 

§  17.  The  Discretionary  Power  of  the  Judge,  and  Individualization. 

§  18.   The  Protection  of  the  Social  Interests. 

§  19.  The  Classical  and  the  Historical  Position. 

§  9.  Introductory :  Private  and  Communal  Punishment 

THE  history  of  the  theory  and  practice  of  punishment 
has  never  been  adequately  presented;  only  its  objective 
study  has  been  undertaken.  The  history  of  ideas  is  elusive; 
some  find  embodiment  in  definite  systems,  and  these  alone 
attract  attention.  Yet  systems  but  reflect  the  outer  aspect 
of  historical  growth ;  they  mark  the  beginning  or  the  end 
of  an  epoch;  they  form  a  synthesis  that  sums  up  a  move- 
ment, or,  as  in  the  case  of  Rousseau's  "Social  Contract," 
an  initiative  that  begins  one.  Apart  from  this,  systems 

1  In  this  connection  see  the  article  by  M.  Durkheim,  "Deux  lois  de  PeVolu- 
tion  penale"  (in  the  AnnSe  sociologique.  Vol.  IV,  1895-1900,  p.  65,  seq.).  On 
the  history  of  criminal  procedure  consult  the  classic  work  of  M.  Esmein, 
"Hutoire  de  la  procedure  criminelle  en  France,"  [translated  by  Mr.  Simpson, 
in  the  Continental  Legal  History  Series  (Boston:  Little,  Brown,  and  Co., 
1912)]. 

20 


§  9]  THE  HISTORY  OF  PUNISHMENT  21 

have  value  only  as  individual  statements;  similarly,  the 
history  of  society  is  shaped  by  popular  conceptions ;  and 
these,  in  turn,  arise  from  facts  rather  than  from  doctrines. 
They  are  vague,  superficial,  and  confused;  and  however 
unconsciously  maintained,  they  are  efficient.  They  are  at 
once  forces  in  the  making  and  in  operation.  It  is  just  when 
their  influence  is  most  active  that  they  are  least  tangible. 
When  ready  for  formulation  their  development  is  often 
at  an  end.  Therein  lies  the  difficulty  of  writing  the  history 
of  doctrines  or  of  intellectual  movements. 

These  explanations  are  necessary  to  excuse  the  inevitable 
shortcomings  of  the  presentation  which  is  to  follow;  and 
particularly  to  advise  the  reader  in  regard  to  the  scope  of 
the  present  task.  Only  a  general  outline,  itself  summary 
in  character,  is  attempted,  with  the  view  of  setting  in  relief 
certain  conceptions  which  are  necessary  to  the  understanding 
of  the  modern  movement.  Such  an  historical  sketch  may 
first  attempt  to  trace  the  origins  of  criminal  law  in  reference 
to  our  own  civilization,  and  the  traits  that  have  character- 
ized it  from  its  first  appearance.  It  includes  as  well  some 
account  of  current  conceptions  and  accepted  formulae, — 
an  account  possibly  subject  to  correction,  in  that  the  whole 
is  foreshortened  in  perspective. 

The  statement  is  commonly  made  and  accepted  that 
criminal  law  began  as  private  vengeance.  That  which  in 
primitive  societies  took  the  place  of  what  we  now  call  public 
opinion  was  not  enlisted  to  avenge  crimes  against  individ- 
uals, for  these  did  not  concern  the  collective  security  of  the 
primitive  social  group.  Every  individual  had  the  right 
to  defend  himself  and  to  take  vengeance  when  attacked. 
Such  private  vengeance  was  conducted  as  warfare ;  the  one 
injured  took  up  arms  against  his  foe.  The  duel  is  such  a 
primitive  form  of  penal  right.  The  conception  of  penalty 


22  INDIVIDUALIZATION  OF  PUNISHMENT         [§  9 

and  censure  is  as  absent  from  the  primitive  system  of  punish- 
ment as  it  is  absent  in  the  case  of  the  duel  as  now  practiced; 
for  the  duel  is  unaffected  by  the  character  of  the  aggressor 
or  by  the  criminal  status,  either  legal  or  social,  of  the  act 
which  was  the  cause  of  the  affair. 

There  followed  a  period  in  which  the  conception  of  com- 
munal peace  began  gradually  to  emerge ;  and  in  consequence 
private  wars  came  to  be  considered  as  an  interference  with 
public  peace.  The  communal  interest  interposed  and  in- 
duced the  contestants  to  put  down  their  arms  and  agree 
upon  a  price  to  be  paid ;  the  proceeding  was  to  all  intents 
an  enforced  treaty  of  peace.  As  private  war  became  less 
common  it  advanced  in  dignity.  Instead  of  being  the  right 
of  all  free  men,  it  became  a  privilege  of  certain  special  classes, 
such  as  the  great  barons  of  feudal  times.  But  we  have  not 
yet  reached  this  period. 

At  the  outset  such  issues  were  in  the  nature  of  private  ami- 
cable treaties ;  but  if  the  contestants  could  not  reach  an  under- 
standing, the  people,  when  they  felt  that  they  had  the  power, 
set  the  price  which  the  offender  was  to  pay  to  the  offended, 
according  to  the  nature  of  the  offense.  Such  payments, 
which  were  abstract  quantitative  values,  to  be  translated 
into  the  media  of  exchange  in  use  at  the  several  economic 
stages  of  history,  were  fixed  according  to  the  social  status 
of  the  parties  concerned.  Later,  under  the  influence  of 
altered  customs  and  contact  with  the  Roman  Empire,  such 
payments  were  fixed  according  to  what  might  be  called  the 
social  worth  of  the  injured  party,  by  which  was  understood 
the  position  held  by  him;  and  particularly  by  his  status 
in  relation  to  the  tribal  chief,  the  "rex"  or  king.1  The  sum 
represented  the  worth  of  the  man  who  had  been  killed  or 

1  This  relation  is  clearly  set  forth  by  Sohm,  in  his  able  volume:  "Die 
Frankische  Reich-  und  Gerichtsverfassung." 


§  10]  THE  HISTORY  OF  PUNISHMENT  23 

wounded,  and  was  accordingly  called  the  value  of  a  man,  — 
Wergild. 

§  10.  Primitive  Punishment  as  Penalty  and  as  Expiation :  the 

Wergild 

Such  was  criminal  law  at  its  first  appearance.  It  was 
a  wholly  objective  penal  law  in  that  the  substitute  for  pun- 
ishment, the  Wergild,  was  a  fixed  sum  to  be  paid,  in- 
dependently of  all  personal  considerations.  If  these  early 
instances  show  a  first  attempt  at  individualization,  it  was 
made  in  behalf  of  the  victim  and  not  at  all  of  the  offender. 
So  far  as  either  was  considered,  it  was  the  person  injured. 
According  to  the  class  to  which  he  belonged,  or,  later,  ac- 
cording to  the  position  which  he  held,  the  price  to  be  paid 
varied.  The  personality  of  the  offender  was  not  considered. 
So,  while  the  evil  done  might  vary  according  to  the  social 
position  of  the  victim,  the  appraisal  of  the  injury  did  not 
vary  with  the  personality  of  the  author  of  the  crime.  Clearly 
a  penal  law  of  this  type  was  wholly  objective. 

But  though  sanctioned  by  law  the  punishment  was  still 
of  a  purely  private  character.  The  punishment  was  the 
private  vengeance  taken  upon  the  victim.  Public  interest 
did  not  interfere  but  remained  neutral.  There  was  set  in 
operation  for  the  benefit  of  the  injured  party  a  modified 
application  of  the  law  of  retaliation.  Punishment  in  its 
public  aspect  had  not  yet  appeared,  but  was  still  regulated 
as  between  individuals.  Such  is  the  accepted  interpretation. 

Possibly  this  account  of  private  vengeance,  accurate 
enough  in  outline,  fails  to  suggest  the  complexity  of  the 
several  points  involved  or  to  make  clear  the  sociological 
and  legal  nature  of  punishment  at  its  first  historical  ap- 
pearance. It  appears  merely  as  an  outcome  of  private  war; 
its  social  character  remains  obscure.  But  to  say  that  there 


24  INDIVIDUALIZATION  OF  PUNISHMENT       [§10 

was  no  public  punishment  would  be  a  mistake.  From  the 
very  outset,  punishment  had  a  twofold  social  character.1 
A  point  apt  to  be  forgotten  is  that  along  with  the  Wergild 
as  a  private  punishment,  there  were  public  expiations  for 
acts  such  as  treason,  that  threatened  the  security  of  the 
tribe.  The  most  complete  accounts  available  of  the  system 
of  Wergild  refer  to  the  Germans,  and  date  back  to  the 
sixth  and  seventh  centuries.  Tacitus,  describing  German 
customs  of  the  second  century,  records  public  punishments 
pronounced  in  assembly  of  the  tribe,  for  treason  or  for  failure 
of  military  duty.2  This  is  the  first  point ;  and  the  second 
is  that  the  Wergild,  which  is  ordinarily  considered  to 
have  been  a  purely  private  punishment,  was,  if  liberally 
construed,  a  social  punishment.  It  should  not  be  forgotten 
that  in  primitive  times  the  conception  of  the  State  did  not 
exist.  The  tribe  was  not  considered  as  constituting  a 
political  bond  except  for  purposes  of  war.  It  was  the  family- 
clan,  rather  than  the  tribe,  that  most  closely  corresponded 
to  the  social  organism,  and  therefore  to  a  political  society.3 
In  regard  to  its  own  members  the  clan  exercised  a  punitive 
justice,  similar  to  that  later  exercised  within  the  company 
of  vassals.4  Thus  what  formerly  constituted  the  Wergild 

1  On  the  social  origins  of  punishment  see  M.  Durkheim, "  Division  du  travail 
social,"  p.  96,  seq, 

1  Tacitus,  "De  Morib.  German,"  XII. 

8  Brunner,  "Deutsche  Rechtsgeschichte,"  I,  §  13;  Lippert,  "Die  Ge- 
schichte  der  Familie,"  III,  §  1;  Post,  "Die  Geschlechtsgenossenschaft  der 
Urzeit,"  chaps,  i  and  vi;  Ibid.,  "Die  Grundlagen  des  Rechts  und  die  Grund- 
ziige  seiner  Entwickelungsgeschichte,"  §§  46  and  47;  Ibid.,  "Bausteine  flir 
eine  allgemeine  Rechtswissenschaft,"  Vol.  I,  chap,  iv;  Bernhoft,  "Staat  und 
Recht  der  romischen  KSnigszeit,"  §  37,  seq. 

See  also  Kovalevsky,  "  Tableau  des  origines  et  de  Involution  de  la  famille  et 
de  la  propri6te";  and  Fustel  de  Coulanges,  "La  Cite  antique." 

4  On  this  question  and  the  issues  involved  consult  the  study  of  M .  Beau- 
douin,  "La  Recommandation  et  la  Justice  seigneuriale "  (in  the  Annales  de 
I'Enseignement  superieur  de  Grenoble,  Vol.  I,  1889),  p.  35,  seq. 


§  10  THE  HISTORY  OF  PUNISHMENT  25 

became  a  ransom  offered  by  one  clan  to  another  and  ceased 
to  be  the  punishment  of  one  individual  for  the  benefit  of 
another.  It  became  the  cost  of  a  settlement,  the  price  of 
a  transaction  of  war  between  two  clans. 

Thus  from  the  beginning  punishment  appears  to  have 
taken  on  a  social  rather  than  an  individual  aspect.  It  was 
a  social  reaction  against  forces  hostile  to  the  welfare  of  the 
communal  life;  it  was  punishment  within  the  group,  —  an 
internal  punishment.  But  it  was  at  the  same  time  a  defense 
against  the  enemies  without,  —  an  external  punishment,  if 
one  may  so  term  it.  When  the  clans  united  in  tribes,  ex- 
ternal punishment,  while  retaining  its  character  as  an  in- 
cident of  war,  was  yet  more  organically  assimilated  to  the 
conception  of  punishment,  for  the  reason  that  the  community 
was  regarded  as  having  recognized  and  legalized  it  under 
the  form  of  Wergild. 

Wherever  society  was  organized  into  groups,  whether 
of  the  family,  the  clan,  or  the  tribe,  we  find  these  two  forms 
of  punishment,  —  the  punishment  as  a  protection  against 
those  outside  the  group,  and  the  punishment  as  an  expiation 
with  reference  to  those  within  the  group.  When  these  groups, 
without  losing  their  identity,  formed  alliances,  the  two 
aspects  of  punishment  were  combined  while  yet  retaining 
their  distinct  functions.  Protection,  expulsion,  expiation,  — 
these  form  the  three  sociological  functions  of  punishment 
present  in  every  society.  Individual  life  requires  a  means 
of  self-protection,  and  communal  life  the  right  of  expulsion. 

From  the  beginning  punishment  presents  a  sociological 
aspect  and  takes  the  form  of  a  routine  legal  procedure. 
Some  authorities  regard  it  as  a  necessary  outcome  of  social 
interaction.  It  must  however  be  recognized  that  primitive 
punishment,  which  we  look  upon  as  external,  while  yet 
retaining  the  aspect  of  an  incident  of  war,  is  in  the  nature 


26  INDIVIDUALIZATION  OF  PUNISHMENT       [§11 

of  a  negotiation  and  is  thus  a  contract  vigorously  enforced. 
In  the  punishment  provided  by  the  Germanic  common  law, 
—  as,  for  example,  hi  the  Salic  law,  —  the  legal  penalty 
approaches  the  status  of  a  civil  obligation. 

It  is  plain  that  there  is  no  sense  of  indignation  against 
the  offender.  The  sense  of  culpability,  as  it  appears  later, 
is  likewise  not  present  ;  or  at  all  events,  it  is  not  expressed 
as  a  feeling  that  carries  an  ethical  implication.  In  a  society 
of  warriors  where  violence  prevailed,  what  we  characterize 
as  crime  was  not  considered  something  abhorrent  or  detest- 
able, especially  as  applied  to  deeds  of  violence.  Whoever 
was  worsted  or  taken  had  to  pay  the  conventional  price, 
quite  as  though  it  were  an  individual  affair,  a  matter  of  pri- 
vate law.  It  is  not  however  the  legal  form  of  contract  in 
its  relation  to  private  law  that  needs  to  be  touched  upon; 
that  has  been  done  to  the  neglect  of  other  aspects. 

§  11.  The  Growth  of  Communal  Interests  and  Social 
Consciousness :  the  Religious  Factor 

But  even  where  the  Wergild  and  external  punishment 
prevailed,  the  conception  of  public  right  gained  ground; 
and  judicial  procedures  of  a  somewhat  different  character 
began  to  appear.  For  example,  the  sense  of  indignation 
and  public  condemnation,  which  is  an  early  index  of  the 
sentiment  of  culpability,  appears  with  reference  to  theft 
and  there  serves  as  a  needed  protection.  This  was  true 
particularly  of  covert  theft,  accomplished  by  a  cowardly 
ruse,1  and  to  other  situations  no  longer  approved  among 
primitive  peoples,  whose  customs,  however  brutal,  are  yet 
compatible  with  a  fairly  developed  morality.  The  conception 
of  a  public  penalty  appears  wherever  the  prevailing  system 

1  Van  Schwinderem,  "Esquisse  du  droit  p£nal  actuel,"  Vol.  II,  p.  219,  with 
references  (note  3). 


§  11]  THE  HISTORY  OF  PUNISHMENT  27 

• 

sanctions  the  division  of  the  fine  between  the  victim  and  the 
community.  In  the  interests  of  the  community  the  "  Fredus" 
was  a  compensation  for  the  disturbance  of  peace  and  public 
welfare.1  But  later  these  relations  assume  a  very  different 
aspect  under  the  influence  of  Roman  law,  which  transferred 
all  cases  of  disturbance  interfering  with  the  public  peace 
to  the  jurisdiction  of  the  baron,  who  replaced  the  for- 
mer provincial  governor.  This  parallelism  in  Merovingian 
France  of  two  forms  of  justice  side  by  side  is  well  set  forth 
by  M.  Fustel  de  Coulanges.2  The  one  was  legal  in  form, 
and  proceeded  according  to  tradition  and  common  law, 
and  was  administered  democratically  through  courts  of 
petty  juries  who  awarded  the  Wergild  according  to  the 
law;  the  other  procedure  was  ignored  by  the  law,  but  was 
almost  the  only  one  described  by  contemporary  writers. 
It  lay  outside  the  administrative  and  legal  pale,  and  was 
exercised  by  the  authority  of  barons  and  other  royal  func- 
tionaries, whose  decisions  commonly  resulted  in  prompt 
executions.  But  at  this  stage  we  have  left  the  "Wergild" 
and  are  approaching  the  public  punishment  as  practiced 
by  the  Romans;  we  are  entering  upon  a  new  stage  of  de- 
velopment where  new  influences  appear. 

Yet  the  ensuing  changes  would  not  so  readily  have  been 
accepted  had  they  not  accorded  with  the  established  prac- 
tices and  traditions.  It  seems  strange  that  the  conception 
of  public  expiation  should  be  of  Roman  origin.  In  fact  we 

1  Concerning  the  Fredus  and  the  legal  organization  in  the  Prankish  period, 
consult  Sohm,  cited  above,  §  6;  and  Brunner,  cited  above,  I,  §  21.  Also 
Esmein,  "Cours  elementaire  d'histoire  du  droit  francais,"  1907.  —  Glasson, 
"Histoire  du  droit  et  des  institutions  de  la  France,"  Vol.  Ill,  chaps,  vii  and 
viii;  and  Viollet,  "Histoire  des  institutions  politiques,"  I,  p.  307. 

8  Fustel  de  Coulanges,  "La  Monarchic  franque,"  chaps,  xiii  and  xiv; 
also  Beaudouin,  "La  participation  des  homines  libres  au  jugement 
dans  le  droit  franc";  also  Esmein,  Glasson,  and  Viollet,  in  the  works 
cited  above. 


28  INDIVIDUALIZATION  OF  PUNISHMENT       [§11 

find  it  in  internal  punishment  as  it  affects  the  clan  or  the 
tribe.  All  that  is  new  is  the  extension  of  this  aspect  of  pun- 
ishment, which  is  at  once  social  and  legal,  to  situations  that 
were  originally  regarded  as  having  only  an  individual  bearing. 
The  first  encroachment  upon  private  punishment  was  the 
"Fredus,"  the  setting  aside  of  the  indemnity  due  to  the 
State.  Then  the  private  punishment  wholly  disappeared 
in  a  transformed  procedure  in  which  the  punishment  was 
inflicted  not  after  the  manner  of  a  settlement  between  two 
contesting  clans,  but  as  an  indemnity  imposed  by  the  tribe 
acting  as  an  internal  police;  it  thus  assumed  the  status 
of  an  internal  punishment.  From  the  same  circumstances  — 
the  passing  of  the  private  injury  and  its  evolution  into  a 
public  offense  —  there  resulted  the  dual  system  of  punish- 
ment. Originally  distinct,  the  two  now  begin  to  merge.  The 
public  punishment  persists  with  the  essential  traits  of  a 
private  punishment,  and  thus  reflects  the  older,  purely 
objective  relations  of  clan  to  clan;  presently  it  becomes 
nothing  more  than  a  civil  indemnity  added  to  the  indemnity 
to  the  State.  The  treatment  of  punishment  as  internal 
gains  ground,  and  carries  with  it  a  public  expiation,1  which 
however  is  as  old  as  society  itself.  Doubtless  primitive 
punishment  within  the  group,  clan,  or  tribe  was  called  into 
play  by  the  natural  evolution  of  the  social  consciousness. 
Yet  the  community  administered  it  according  to  legal  forms. 
To  condemn  a  traitor  within  the  fold  was  a  very  different 
matter  from  killing  an  enemy  in  war.2  . 

1  Tarde,  "Les  transformations  du  droit,"  chap.  i. 

1  The  evidence  points  to  the  fact  that  in  the  primitive  period  (in  the 
phase  which  Gumplotcicz  calls  syngenetism)  crimes  within  the  fold,  among 
members  of  the  same  social  group,  were  extremely  uncommon.  In  so  far  as 
these  were  private  offenses,  they  aroused  a  feeling  of  astonishment  and  pity, 
rather  than  a  communal  protest.  For  this  reason,  when  the  protest  ap- 
peared, it  was  likely  at  first  to  assume  a  religious  and  later  a  legal  aspect. 


§  11]  THE  HISTORY  OF  PUNISHMENT  29 

The  infliction  of  the  punishment  becomes  a  sort  of  religious 
ceremony.  It  is  solemnized  by  formalities,  sanctioned  by 
law  and  ritual,  imposing  one  ceremony  for  the  verdict,  and 
another  for  its  execution.  An  assembly  of  the  tribe  is  sum- 
moned for  the  imposition  of  the  punishment;  thereupon 
the  execution  takes  place  according  to  established  rites 
after  the  manner  of  an  expiatory  sacrifice.  It  is  in  fact  a 
sacrifice  offered  to  the  gods  of  the  tribe;  the  victim  is  not 
an  enemy  to  be  put  to  death,  but  one  to  be  immolated  to 
satisfy  the  demands  of  the  gods.  The  tribe  does  not  claim 
the  right  to  kill  for  the  sake  of  killing;  to  appease  the  ven- 
geance of  the  gods  is  the  excuse  for  the  immolation.  It 
may  then  be  stated,  once  for  all,  as  a  general  principle  of 
social  psychology,  that  societies  act  only  by  virtue  of  natural 
and  necessary  laws.  But  these  social  needs  in  some  way 
lead  to  actions  voluntary  in  appearance;  they  come  for- 
ward and  reach  expression  as  idealized  feelings,  at  first 
religious,  and  later  logical.  Every  social  organism  demands 
the  expulsion  or  destruction  of  its  internal  enemies,  but 
when  society  kills  it  has  no  consciousness  or  intent  of  doing 
so  in  execution  of  a  law  of  its  own  making;  its  intent  is  to 
carry  out  an  act  of  social  or  divine  justice.  The  individual 
has  a  direct  consciousness  of  his  instinctive  needs;  the 
community  has  only  a  vague  consciousness  of  its  logical  needs. 
What  the  individual  feels  the  community  reaches  by  re- 
flection. The  combined  individual  needs  irresistibly  compel 
communities  to  action.  But  practical  action  requires  a 
rational  justification.  When  men  unite  in  a  common  pur- 
pose they  mass  their  instincts,  but  what  they  present  to 
one  another  are  arguments;  and  therein  lies  at  once  the 
value  and  the  danger  of  the  individual.  Conduct  is  due 
to  impulse  but  takes  cover  under  the  sense  of  justice.  In- 
terest determines,  but  honor  alone  is  mentioned.  This 


30  INDIVIDUALIZATION  OF  PUNISHMENT       [§  12 

social  solidarity  is  a  terrible  force  ;   but  it  is  also  a  notable 
tribute  to  the  intrinsic  power  of  the  human  mind. 

Such  is  the  explanation  of  the  twofold  aspect  of  primitive 
punishment.  While  fundamentally  the  expression  of  a  direct 
animal  impulse,  it  comes  to  consciousness  as  an  obligation 
to  an  ideal.  The  culprit  is  appraised  in  terms  of  his  crime; 
he  is  looked  upon  in  terms  of  the  evil  that  he  has  done,  the 
perfidy  realized.  But  his  punishment  is  referred  to  a  higher 
source  and  ascribed  to  an  outraged  divinity.  He  is  deliv- 
ered to  the  vengeance  not  of  the  people  but  of  the  gods  ; 
it  is  they  who  demand  an  expiation,  and  the  people  offer  it. 
Primitive  punishment  is  thus  a  composite  of  religious 
observances  and  legal  forms,  and  not  primarily  a  measure 
of  protection.  It  is  a  penalty  imposed  for  the  evil  done, 
compensating  the  injury  of  the  transgression  by  the  punish- 
ment of  the  transgressor. 

§  12.  Early  Views  of  Objective  Crime  and  Subjective  Criminality 

From  its  first  appearance,  punishment  presents  the  in- 
herent and  persistent  contrast  between  the  conception  of 
it  as  a  penalty,  and  as  a  means  to  an  end.  The  penalty  is 
for  the  evil  done;  the  end  is  that  of  intimidation,  of  pre- 
venting evil  in  the  future.  This  distinction,  in  its  present 
more  scientific  formulation,  constitutes  the  actual  antithesis 
between  the  classic  and  the  modern  school.  As  a  social 
phenomenon  it  dates  back  to  the  beginnings  of  history,  where 
it  appears  not  as  an  antagonism  but  as  a  fusion  of  the  two 
attitudes.1 

1  On  the  system  of  the  Wergild  and  of  private  vengeance1  see  in  addi- 
tion to  authors  cited  above,  Kohler,  "Shakespeare  vor  dem  Forum  der 
Jurisprudenz,"  p.  119,  seq.\  Giinther,  "Die  Idee  der  Wiedervergeltung,"  I, 
p.  162,  seq.\  Lqffler,  "Die  Schuldformen  des  Strafrechts,"  §§  1  and  2;  Tha- 
nissen,  "  reorganisation  judiciare,  le  droit  penal  et  la  procedure  penale  de  la 
loi  salique";  and  Schroder,  "Lehrbuch  der  deutschen  Rechtsgeschichte," 
§36. 


§  12]  THE  HISTORY  OF  PUNISHMENT  31 

In  primitive  times  penal  law  was  unquestionably  object- 
tive  ;  it  considered  only  the  deed  done,  while  ignoring  the 
personality  of  the  agent.  It  was  primarily  the  injury  suf- 
fered that  was  to  be  praised.  But  this  objective  aspect  of  the 
repressive  function  of  punishment  carries  a  very  different 
significance  from  that  now  attached  to  it.  It  is  not  alone 
that  individualization  is  as  yet  absent,  there  is  equally  absent 
the  conception  of  moral  culpability.  No  account  whatever 
is  taken  of  what  are  now  referred  to  as  extenuating  circum- 
stances ;  and  there  is  no  implication  that  the  will  is  to  blame 
or  that  any  kind  of  moral  obliquity  is  involved.  Consequences 
alone  are  considered.  A  personal  or  social  transgression  has 
occurred  and  demands  reparation;  a  penalty  must  be  im- 
posed, no  matter  whether  or  not  the  agent  is  morally  to 
blame.  Material  damage  has  been  done;  the  perpetrator 
must  be  punished. 

If  the  injury  is  a  personal  one,  the  injured  party  need  not 
consider  whether  or  not  his  enemy  acted  intentionally.  The 
law  offers  him  a  price  in  requital,  the  Wergild,  which 
he  may  properly  claim.  If  the  injury  is  a  public  one,  the 
community  seeks  reparation;  that  is,  the  gods  desire  an  ex- 
piation. The  evil  done  requires  its  victim.  Details  of  intent 
are  not  considered  or  analyzed.  To  be  the  material  author 
of  an  act  itself  implies  moral  accountability  for  one's  actions. 

All  this  has  been  generally  recognized  in  reference  to  the 
Wergild.  The  system  of  the  Wergild  may  be  described 
as  one  that  takes  no  account  of  responsibility.  It  is  true  that 
certain  records  give  the  impression,  in  reference  to  public 
punishments,  that  the  intention  of  the  culprit  was  really  con- 
sidered. This  may  have  been  the  case;  at  all  events  there 
is  at  present  a  tendency  to  believe  that  in  primitive  times 
greater  importance  was  attached  to  the  conception  of  blame 
and  responsibility  than  has  hitherto  been  allowed. 


32  INDIVIDUALIZATION  OF  PUNISHMENT       [§  12 

But  this  is  not  the  place  to  enter  into  the  details  of  this 
controversy.1  There  are  certain  accounts  which  consider 
the  matter  of  the  intent  with  an  emphasis  that  suggests 
an  innovation;  they  introduce  the  conception  of  the  will  in 
terms  that  show  it  to  have  been  a  recent  advance.  There  is 
commonly  cited  an  edict  of  Charlemagne  that  provides  for 
the  case  of  an  unintentional  crime.  It  provides  not  that  the 
punishment  is  to  be  omitted  but  that  it  is  to  be  diminished.2 
This  would  indicate  that  the  principle  previously  practiced 
imposed  the  full  penalty  in  all  cases,  even  in  unintentional 
crime.  For  there  could  be  no  more  emphatic  indication  that 
liability  to  punishment  is  independent  of  moral  culpability 
than  by  imposing  it  even  in  the  absence  of  intent.  But  why 
the  diminution  of  punishment?  The  crime,  though  unin- 
tentional and  accidental,  is  not  the  less  punishable;  the  lack 
of  intent  does  not  constitute  an  excuse.  Even  in  the  eccle- 
siastical law,  which  is  committed  to  the  recognition  of  the 
will  and  consequently  of  sin,  there  are  some  traces  of  the 
distinction  introduced  by  Charlemagne,  —  that  of  a  dimin- 
ished punishment  for  an  unintentional  act.3  Clearly  this 
distinction  carries  some  new  meaning.  It  refers  to  offenses 
due  to  negligence,  which  are  contrasted  with  intentional 
offenses;  and  the  former  do  not  exclude  responsibility,  be- 
cause such  lack  of  forethought  is  itself  a  fault  of  the  will. 
The  early  accounts  clearly  show  the  bearing  of  the  distinction; 
the  advance  consists  in  the  introduction  of  the  principle  of 
diminishing  the  punishment  and  it  is  a  reaction  against  the 
neglect  of  all  distinctions,  against  the  application  of  the  full 
penalty  in  all  cases,  whether  the  crime  was  intentional  or 
accidental.  This  indicates  that  previously  the  intent  had 

1  Brunner,  cited  above,  II,  §  125;  and  Loffler,  cited  above,  I,  p.  118. 

*  "Capitulare  missorum"  (819),  c.  15  (edit.  Boretius,  I,  p.  290). 

*  Loffler,  cited  above,  p.  138. 


§  12]  THE  HISTORY  OF  PUNISHMENT  33 

been  a  negligible  factor.  The  conception  of  moral  fault 
had  not  entered  and  was  not  made  a  factor  of  the 
criminal  act.  For  the  crime  was  determined  solely  by 
its  material  consequences  and  not  by  its  psychological 
causes. 

Primitive  penal  law  had  not  yet  developed  the  conception 
of  moral  sin;  responsibility,  in  the  modern  sense,  was  foreign 
to  its  spirit.  This  was  natural  in  a  state  of  society  not  very 
different  from  that  of  wandering  tribes,  such  as  existed 
among  our  ancestors  after  the  Germanic  invasions  in  the 
sixth  and  seventh  centuries.  What  we  call  crime  carried 
with  it  no  dishonor  in  the  society  of  that  period,  least  of  all 
murder.  It  was  a  normal  incident,  for  a  state  of  war  and 
pillage  prevailed.  To  attack  others  and  to  defend  oneself 
were  among  the  everyday  incidents  of  life,  consequent  upon 
unrestraint. 

There  was,  of  course,  the  price  to  be  paid  to  the  family  of 
the  victim  ;  and  this  fine  was  fixed  in  advance.  The  offender 
realized  his  liability.  If  he  committed  a  murder,  he  knew 
in  advance  what  he  would  have  to  pay  for  it.  The  Wergild 
determined  the  cost  of  the  adventure;  so  much  for  murder, 
so  much  for  a  broken  leg,  or  arm.  This  was  the  hazard  of 
unrestraint. 

Such  objective  penal  law,  in  which  responsibility  has  no 
place,  becomes  a  penal  law  based  upon  the  notion  of  taking 
one's  chances.  This  point  should  be  carefully  noted,  for 
whenever  penal  law  returns  to  an  objective  attitude,  this 
theory  of  taking  one's  chances  tends  to  reappear  ;  it  still 
prevails  in  the  minds  of  professional  criminals.  They 
choose  an  occupation  that  involves  risks,  and  they  realize 
the  risk  which  they  incur.  If  they  steal,  they  pay  for 
it,  as  a  debt,  by  so  many  months  of  imprisonment. 
Society  appears  as  a  creditor  to  whom  a  debt  is  due. 


34  INDIVIDUALIZATION  OF  PUNISHMENT       [§  13 

With  the  debt  paid  one  may  begin  anew;  the  score  is 
canceled.1 

Whether  this  description  applies  to  the  Salic  law  or  to  the 
laws  of  our  day  is  not  an  idle  question.  Our  laws,  and  those 
who  apply  them,  emphasize  the  hazard  of  transgression,  as 
well  as  its  corollary,  the  debt  to  be  paid,  which  determines 
the  prisoner's  fate.  They  see  to  it  that  this  is  firmly  fixed 
in  the  minds  of  the  offenders;  they  apply  it  to  the  man  who 
appears  in  court  for  the  first  time,  and  who  feels  the  full 
force  of  the  instrument  of  justice  to  which  he  is  made  to  sub- 
mit; they  apply  it  to  him  who,  upon  his  first  transgression, 
inevitably  passes  from  the  defendant's  seat  to  a  prisoner's 
cell,  and  who,  in  due  time,  will  leave  it  with  fixed  habits  and 
the  conviction  that  he  must  give  an  account  of  himself. 

This  conception  is  older  than  modern  civilization;  its  re- 
vival is  due  to  the  influence  of  modern  dogmatic  tradition. 
In  its  origin  it  was  shaped  by  direct  contact  with  crude  sit- 
uations ;  it  was  revived  as  an  abstract  construction  that 
proceeded  independently  and  in  neglect  of  the  facts.  It  is 
well  to  note  its  source  and  its  historical  position.  It  flourished 
in  periods  of  barbarism  and  in  times  of  violence.  The  prin- 
ciple which  it  involved  may  be  simply  stated:  Punishment 
is  the  hazard  of  unrestraint. 

§  13.  Responsibility,  Freedom  of  the  Will,  and  Sin,  as 
determining  Crime 

Such  was  the  position  of  primitive  law,  and  such  will  be 
that  of  punitive  law  wherever  it  emphasizes  the  objective 
side  of  crime.  Let  us  now  take  a  step  in  advance  and  con- 
sider the  status  of  modern  civilization  with  reference  to  a 
criminal  law  based  upon  responsibility.  The  question  arises 

1  See  the  interesting  observations  drawn  from  the  confessions  of  a  noted 
criminal,  reported  by  Sir  Robert  Anderson,  in  "Criminals  and  Crime"  (Lon- 
don, 1907),  p.  8. 


§  13]  THE  HISTORY  OF  PUNISHMENT  35 

whether  the  conception  of  responsibility  was  introduced  by 
Christianity  and  the  ecclesiastical  law,  or  by  Roman  law.1 
It  seems  necessary  to  distinguish  between  the  popular  and 
the  scientific  conception  of  responsibility.  The  notion  of  a 
deliberate  transgression  for  which  the  individual  is  respon- 
sible forms  the  basis  of  what  in  Christianity  becomes  the 
origin  and  support  of  the  doctrine  to  which  it  leads,  the  con- 
ception of  sin.  Though  the  Greek  and  Roman  philosophers 
were  acquainted  with  this  conception  before  Christianity,  it 
was  through  the  latter  that  the  conception  of  moral  respon- 
sibility was  disseminated  and  entered  the  minds  of  men,  to 
spiritualize  the  notion  of  transgression.  Yet  the  conception 
of  responsibility  thus  formed  had  but  a  popular  status.  It 
spread  like  a  notion  familiarly  appreciated  and  recognized 
but  not  as  yet  analyzed,  clearly  defined,  or  scientifically 
determined. 

This  conception  of  responsibility,  which,  though  vague, 
had  an  active  hold  upon  the  mind,  must  not  be  confused 
with  what  the  idealistic  philosophy  of  a  later  day  advanced 
as  the  doctrine  of  free  will.  From  the  beginning  of  Chris- 
tianity the  question  of  the  freedom  of  the  will  has  been  a 
perplexing  one.  But  the  controversy  was  waged  within 
the  sphere  not  of  the  law  but  of  theology  and  religion  in 
struggling  with  the  Christian  dogmas  of  grace,  divine  elec- 
tion, and  predestination.  Contradictory  statements  may  be 
found.  The  Gospels  contain  passages  expressing  views  such 
as  sociology  now  upholds.  There  is  particularly  the  oft-cited 
passage  declaring  that  a  corrupt  tree  will  produce  only  evil 
fruit,  and  that  the  good  tree  will  ever  bring  forth  good  fruit.2 

1  See  particularly  Giinther,  cited  above,  I,  p.  263,  seq. ;  Loffler,  cited  above, 
p.  136,  seq.;  Hinschius,  "Kirchenrecht,"  Vol.  IV,  p.  691,  seq.,  Vol.  V,  §  342, 
p.  916,  seq.;  Engelmann,  "Die  Schuldlehre  der  Postglossatoren,"  1895. 

2  St.  Matthew  vii,  16;  xii,  33;  St.  Luke  vi,  43.    Consult  Merkel"  Vergelt- 
ungsidee  und  Zweckgedanke  iin  Strafrecht,"  p.  56. 


36  INDIVIDUALIZATION  OF  PUNISHMENT       [§  13 

The  conduct  of  men  is  determined  by  the  entire  mental 
and  moral  character.  We  do  not  observe  in  each  act  as  it 
presents  itself  the  entrance  of  an  impartial  and  indifferent 
personality  choosing  freely  between  two  issues  at  stake.  In 
any  given  situation  the  action  that  eventually  ensues  has 
its  origin  in  the  character  of  the  man  and  is  in  a  measure  due 
to  his  temperament.  There  are  indeed  states  of  mind  that 
are  themselves  the  result  of  freedom;  but  it  is  not  easy  to 
maintain  that  there  are  free  acts. 

Yet  modern  statistical  and  sociological  conclusions  go 
little  farther  than  the  above  citation  from  the"  Gospels.  The 
statement  of  St.  Paul  is  more  positive; 1  and  the  position  of 
St.  Augustine  in  regard  to  the  conflict  between  freedom  and 
grace  is  familiar.2  For  what  avails  man,  and  what  can  he 
accomplish  unaided?  Can  he  effect  aught  without  grace, 
can  he  achieve  personal  merit?  These  were  the  problems 
and  the  difficulties  mentioned  by  St.  Paul,  and  to  these  the 
efforts  of  theology  were  directed.  It  but  added  a  further 
mystery  when  the  antithesis  was  accepted  of  a  belief  in 
moral  freedom  co-ordinately  with  the  belief  that  man  of  him- 
self cannot  achieve  worth  or  power.  The  antithesis  remains 
insoluble.  It  becomes  a  mystery  which  theology  alone  can 
adequately  solve.  However,  despite  the  mystery  and  the 
difficulty,  or  even  impossibility,  of  reconciling  these  views,  the 


1  The  Epistle  to  the  Romans,  vii,  19,  seq.;  all  of  chapter  viii;  ix,  14,  seq. 
Consult  A.  Sabatier,  "L'apdtre  Paul"  (second  edition),  pp.  178-183.  In 
verification  of  certain  statements,  consult  (on  the  doctrine  of  St.  Paul)  the 
following:  Werrde,  "Der  Christ  und  die  Stinde  bei  Paulus"  (Freiburg,  Mohr, 
1897);  and  Bartmann,  "S.  Paulus  und  S.  Jacobus  tiber  die  Rechtf ertigung " 
(Freiburg,  Herder,  1896). 

1  A  brief  summary  of  the  teachings  of  St.  Augustine  on  this  point  are 
found  in  M.  Hatzf eld's  "Saint  Augustin"  (Paris,  1897),  chap,  i,  p.  95,  seq. 

It  is  familiar  that  Luther  and  Calvin,  and  later  Jansen,  based  their  some- 
what similar  views  of  predestination  upon  an  inadequate  and  too  literal  in- 
terpretation of  certain  of  these  passages  of  St.  Paul  and  St.  Augustine. 


§  13]  THE  HISTORY  OF  PUNISHMENT  37 

conclusion  was  not  drawn  that  this  effacement  of  human 
personality  involved  a  denial  of  responsibility.  No  one 
doubted  that  man  was  a  responsible  being,  —  clearly  not 
St.  Paul  or  St.  Augustine;  and  still  less  was  this  the  atti- 
tude of  the  Gospels. 

Thus  through  the  ecclesiastical  law  the  conception  of 
responsibility  began  to  prevail  in  the  domain  of  criminal 
law,  and  with  it  arose  the  subjective  attitude.  While  previ- 
ously the  law  recognized  only  the  injury  to  the  individual  or 
society  —  that  is,  the  material  crime  in  its  direct  relation  — 
the  ecclesiastical  law  looked  to  the  soul  of  the  man  who  had 
committed  the  crime.  In  its  own  language,  its  concern  was 
the  soul  that  had  sinned,  that  was  to  be  healed,  purified, 
and  regenerated  through  expiation  and  punishment.1 

The  conception  of  penalty  persists  but  in  a  purified  form, 
and  is  transformed  into  an  expiation.  Both  the  word  and 
the  idea  are  ancient  and  had  their  origin  in  the  sacrifices 
offered  to  appease  the  gods.  But  the  newer  type  of  expiation 
presented  other  aspects.  Expiation  was  not  offered  as  a 
useless  suffering  to  an  inaccessible  or  implacable  divinity, 
who  might  find  therein  a  sort  of  cruel  satisfaction.  It 
became  the  sign  of  an  effective  repentance  and  made  the 
repentance  real. 

Punishment  is  thus  transformed  and  returns  to  its  point 
of  origin  in  God.  Of  the  several  theories  accounting  for  the 
origin  of  the  right  to  punish,  none  is  more  respectful  of  the 
dignity  and  freedom  of  man  than  this,  unless  it  be  its  ex- 
treme opposite,  the  positive  doctrine.  For  here,  as  else- 
where, it  may  truly  be  said  that  extremes  meet.  The  right 
to  punish  belongs  to  God  alone  ;  it  is  not  delegated  to  man. 
No  man,  except  by  divine  delegation,  has  power  over  the 
liberty  or  the  life  of  another;  not  even  society  has  this 
1  Pellizari,  "E  delitto  e  la  scienza  moderna"  (1896),  p.  441. 


38  INDIVIDUALIZATION  OF  PUNISHMENT        [§  13 

power.  Even  the  positive  school  holds  that  society  does 
not  punish  but  only  protects  its  own  interests.1  The  same 
expression  occurs  constantly.  No  one  man,  and  no  human 
community,  has  sway  over  the  human  conscience  or  the 
right  to  judge  it.  Punishment  is  more  than  the  exercise  of 
control  and  authority  of  one  man  over  another  ;  it  is  an 
attempt  to  invade  the  human  conscience,  to  exercise  judg- 
ment upon  personality,  and,  in  virtue  of  this  judgment  of 
a  man's  conscience,  to  dispose  of  his  life  and  liberty.  In 
this  sense  man  has  no  judge  but  God.  So  the  ecclesiastical 
law  holds  ;  and  while  the  positive  school  does  not  expressly 
say  so,  it  implies  as  much,  for,  of  all  philosophical  systems 
accounting  for  the  right  to  punish,  the  view  just  set  forth 
would  alone  be  compatible  with  its  conclusions.  It  is  the 
only  view  that  from  the  positivist  position  may  be  con- 
sidered scientific.  On  the  other  hand  the  system  that  makes 
light  of  human  dignity  and  is  incompatible  with  individual 
freedom  is  the  liberal  position.  There  are  no  principles  nor 
axioms,  nothing  in  the  doctrines  of  liberalism  or  of  rational- 
ism, that  can  invest  society  with  the  right  to  punish  and 
legitimize  the  exercise  thereof.  In  this  issue  philosophy  is 
helpless;  sociology  by  holding  to  realities  of  life  has  solved 
half  the  problem.  It  regards  punishment  as  required  by 
actual  conditions,  as  a  natural  law,  as  a  reflex  action  of  the 
organism.  To  advance  beyond  this  point  the  positive  doc- 
trine must  find  its  complement  in  the  ecclesiastical  law. 
This,  surprising  as  it  may  seem,  is  not  impossible,  because, 
in  considering  the  situation  as  a  whole  and  fundamentally, 
such  fusion  is  not  incompatible  with  the  consideration  of 

1  Observe  the  combination  of  these  ideas  in  M.  Hardcourt's  couplet: 
"The  right  to  punish  for  God  alone  is  meant, 
We  dare  not  punish,  only  future  woe  prevent." 

Revue  de  Paris,  January  15,  1898,  p.  311. 


§  14]  THE  HISTORY  OF  PUNISHMENT  39 

the  facts,  which  belong  to  science  alone,  nor  with  that  of 
faith,  which  belongs  to  religion  alone.  Ecclesiastical  law 
had  no  need  to  make  such  distinctions  nor  to  resolve  such 
contradictions,  because  it  was  scarcely  aware  of  them.  It 
was  satisfied  with  the  contention  that  punishment  belongs 
to  society  only  through  divine  delegation. 

§  14.    The  Analysis  of  the  Grounds  of  Punishment ;  Responsi- 
bility in  Ecclesiastical  Law 

While  punishment  thus  reverts  to  the  highest  possible 
source  for  its  origin,  at  the  same  time  it  undergoes  a  thorough 
transformation.  The  subjective  nature  of  the  agent  becomes 
commanding.  The  modern  conception  of  a  subjective  crim- 
inal law  is  already  wholly  contained  in  the  ecclesiastical 
law,  not  merely  in  germ  but  also  in  its  application.  It  was 
applied  by  the  officers  of  the  ecclesiastical  court,  who  were 
the  justices  of  the  church.  It  was  introduced  likewise  in 
the  practice  of  civil  justice,  and  possibly  with  a  somewhat 
unfortunate  result.1  It  has  been  advanced  that  the  admis- 
sion of  responsibility  was  but  a  pretext  to  protect  the  intro- 
duction of  torture.  Though  this  seems  probable,  it  was 
clearly  not  the  only  consideration,  for  the  whole  matter 
was  very  complex,  and  other  decisive  factors  entered.  Pun- 
ishment required  proofs,  not  alone  of  the  facts  but  of  guilt. 
Accordingly  witnesses  were  appealed  to;  and  as  ordinarily 
the  guilty  were  not  willing  to  confess,  so  long  at  least  as  they 
could  plead  innocence,  recourse  was  had  to  torture  to  establish 
their  guilt,  both  as  to  the  deed  and  the  intent. 

Even  before  the  advent  of  Roman  law  the  subjective 
attitude  was  assumed,  and  the  Scholastics  applied  their 
methods  of  definition  and  logical  deduction  to  questions  of 
responsibility.  This  does  not  mean  that  those  concerned 

1  Wahlberg,  "Das  Princip  der  Individualisirung,"  pp.  3-4. 


40  INDIVIDUALIZATION  OF  PUNISHMENT        [§  14 

with  crime,  whether  belonging  to  the  clergy  or  to  the  laity, 
considered  in  detail  the  freedom  of  the  will  in  penal  ques- 
tions.1 The  question  of  free  will  was  considered  as  a  theo- 
logical one  in  its  relation  to  grace,  and  it  was  asked:  what 
avails  the  human  will  compared  with  divine  grace  ? 

In  criminal  law  an  act  of  volition  was  considered  a  re- 
sponsible act.2  The  question  was  not  put  whether  this  act 

1  Engelmann,  "Die  Schuldlehre  der  Postglossatoren,"  p.  12,  seq. 

2  To  obtain  the  view  point  of  the  Middle  Ages  upon  free  will  the  important 
chapter  devoted  to  it  in  the  "Summa"  of  Thomas  Aquinas  should  be  read. 
Qusest.  83  ((Euvres  completes,  edit.  Farm.,  1852,  I,  p.  325);  also  "Comment, 
in  secund.  libr.  Sentent.  Lombard!,"  2.  D.  24,  qusest.  1.    There  the  views  of 
certain  scholars,  such  as  St.  Bernard,  who  regard  freedom  as  a  condition  of 
mind  rather  than  as  a  motive  force,  are  discussed  and  refuted  in  the  usual 
scholastic  fashion.     This  was  the  well-known  problem  of  whether  the  free 
will  was  to  be  considered  as  a  "habitus"  or  as  a  "potentia."    Thomas  Aqui- 
nas holds  to  the  latter  position,  yet  he  identifies  freedom  with  volition  (see 
the  "Summa,"  passage  cited)  and  even  with  judgment  (see  the  "Sententia," 
passage  cited). 

With  reference  to  the  very  different  question  of  free  will  and  grace,  the 
trend  of  the  school  of  Thomas  Aquinas  is  familiar,  and  the  position  taken 
directly  opposed  to  that  assumed  by  the  Molinists.  This  question  is  very 
distinct  from  that  of  the  existence  and  nature  of  free  will,  considered  as  a 
natural  human  faculty,  apart  from  the  spiritual  realm  and  the  expression  of 
the  spiritual  life.  It  serves  however  to  illuminate  precisely,  though  in- 
directly, the  notion  of  freedom  entertained  by  theology,  and  the  possibility 
of  its  acceptance  of  the  psychological  mechanism  disclosed  by  scientific  ob- 
servation, without  abandoning  its  essential  postulates  in  the  realm  of  faith. 
For  theology  must  admit  a  determinism  of  divine  origin.  Such  is  the  opinion 
of  the  majority  of  theologians,  and  especially  of  the  Thomists.  Possibly 
some  reservation  should  be  made  in  regard  to  the  Molinists;  but  the  differ- 
ence in  question  pertains  less  to  the  basis  of  the  problem  than  to  the  mode 
of  interpreting  the  premises.  The  difficulty  of  reconciling  a  belief  in  freedom 
and  responsibility  with  a  supernatural  determinism  is  no  more  serious  than 
that  involved  in  its  reconciliation  with  a  natural  and  psychological  deter- 
minism. If  freedom  is  compatible  with  the  one,  why  should  it  not  be  with 
the  other  ?  And  its  compatibility  may  lie  in  the  consideration  of  free  will 
as  the  counterpart  of  the  self,  as  an  expression  of  the  ego  in  its  relation  with 
the  supernatural  life,  conceived  as  the  means  of  adjusting  the  spiritual  per- 
sonality to  the  service  of  its  physiological  conditions.  Freedom  thus  be- 
comes a  state  of  a  free  spiritual  life.  It  may  similarly  be  conceived,  apart 
from  the  question  of  supernatural  intervention,  as  a  state  of  free  spiritual 


§  14]  THE  HISTORY  OF  PUNISHMENT  41 

of  volition  was  predetermined  or  not,  whether  or  not  it  was 
conditioned  by  a  series  of  psychological  antecedents,  which 
left  no  place  for  the  entrance  of  any  motive  unrelated  to  the 
dominant  one.  The  position  may  be  expressed  by  such  an 
equation  as  that  an  act  of  will  is  equivalent  to  a  free  act 
and  consequently  to  a  responsible  act. 

The  discussion  considers  the  application  of  the  formula 
rather  than  its  basis  and  justification.  Thus  Thomas  Aquinas 
takes  up  in  detail  the  question  of  determining  the  purpose 
to  which  the  will  must  have  been  directed  hi  order  that  the 
deed  shall  be  punishable.1  For  example,  a  person  plans 
and  wills  an  act  which  in  itself  is  a  crime,  such  as  paying 

activity,  whereby  the  personality  reflects  its  worth,  and  in  complete  inde- 
pendence of  the  inner  life  develops  its  vital  initiative.  This  argument  does 
not  imply  that  scholastic  theology  thus  clearly  viewed  its  problems.  It  is 
intended  only  to  set  forth  what  would  not  be  in  marked  contradiction  with 
its  position.  I  am  well  aware  that  the  theologians  have  tried  to  reconcile 
the  fact  of  divine  determinism  with  that  of  human  freedom,  by  ascribing  a 
transcendence  to  the  former;  that  is,  by  the  avowal  of  an  inherent  mystery, 
which  is  tantamount  to  dispensing  with  all  explanation.  Yet  they  do  not 
have  recourse  to  the  same  privilege  in  regard  to  the  reconciliation  of  freedom 
with  a  psychological  determinism.  Wherever  psychological  realities  are 
considered,  there  is  no  mystery;  for  it  is  urged  that  one  must  hold  to  the  one 
attitude  or  the  other.  But  this  I  am  not  at  all  prepared  to  admit.  The 
state  of  freedom,  in  respect  of  an  universal  determinism,  is  a  metaphysical 
fact,  quite  as  mysterious  as  that  of  predestination  or  divine  foreknowledge; 
and  the  mystery  accepted  in  the  supernatural  order  is  not  more  difficult  to 
admit  in  the  metaphysical  order  of  things. 

One  may  further  consider  the  important  passages  in  St.  Bernard,  to  which 
reference  has  been  made,  and  his  peculiar  view  of  freedom  as  a  state  of  mind 
capable  of  arousing  the  acts  to  which  it  gives  rise  and  so  determining  conduct 
that  every  action  becomes  an  act  of  freedom,  provided  that  it  goes  back  to 
the  initial  source,  which  is  a  state  of  psychological  freedom.  He  defines 
freedom  thus:  "Est  enim  habitus  animi,  liber  sui."  See  St.  Bernard,  "De 
gratia  et  libero  arbitrio  tractatus,"  chaps,  i  and  ii  (Patrolog.  Migne,  v. 
CLXXXII,  1002).  For  an  admirable  review  of  the  teachings  of  Thomas 
Aquinas  and  St.  Bernard  on  the  freedom  of  the  will  consult  M .  Fonsegrive, 
"Essai  sur  le  libre  arbitre"  (second  edition,  Alcan,  1896). 

1  On  these  points  and  for  the  pertinent  citations  consult  Loffler,  as  above, 
p.  158,  seq. 


42  INDIYTOUALIZATION  OF  PUNISHMENT       [§  15 

some  one  for  striking  down  his  enemy.  But  the  agent  ex- 
ceeds his  instructions,  and  in  the  excitement  of  the  struggle 
unintentionally  kills  his  victim.  Shall  the  instigator  of  the 
assault  be  responsible  for  the  murder  which  he  has  neither 
planned  nor  desired  ?  A  similar  question  arises  in  case  of 
drunkenness;  for  example,  as  when  a  man  who  transgresses 
by  consenting  to  drink  (a  failing  in  itself),  and  then  loses 
his  head  and  commits  a  crime  of  which  he  had  no  previous 
intent.  Such  questions  still  arise,  and  have  been  under 
consideration  since  the  days  of  Thomas  Aquinas.  Likewise 
other  common  questions  of  the  present  time  are  clearly  an- 
ticipated, such  as  indirect  or  contingent  liability.1  We  thus 
see  how  the  problem  of  responsibility  was  considered.  The 
question  at  issue  was  not  to  determine  whether  the  will  that 
initiated  the  act  would  have  been  capable,  not  in  general  but 
in  this  special  incident,  to  refrain  from  willing  and  to  resist 
the  impulse  or  motive  that  inspired  it;  the  question  was 
solely  to  determine  whether  the  forethought  and  intent  of 
the  act  involved  the  consequences  of  the  undertaking;  at- 
tention was  directed  to  the  objective  end  and  but  little  to 
its  primary  cause. 

§  15.   Consequences  of  the  Older  Position:  its  Contrast  with  the 

Modern  View 

A  further  consequence  of  the  subjective  position  is  this: 
that,  as  will  is  equivalent  to  responsibility,  so  responsibility 
must  vary  with  the  intent,  and  thus  directly  with  the  ob- 
jective gravity  of  the  crime.  There  is  no  analysis  of  the 
intrinsic  nature  of  the  will  considered  abstractly  and  inde- 
pendently of  the  act;  such  analysis  would  involve  an  ob- 
servational psychology  which  was  hardly  known  to  the 

1  On  this  question  of  contingent  liability  see  the  thesis  of  M.  Round  Duval 
(Paris,  1900). 


§  15]  THE  HISTORY  OF  PUNISHMENT  43 

metaphysics  of  the  day.  Every  act  of  will,  in  so  far  as  it  is 
directed  to  a  specified  action,  is  of  a  like  nature  and  quality; 
what  changes  is  the  purpose  to  which  it  is  directed.  The 
more  the  purpose  implies  an  objective  criminality,  the  greater 
the  blame  for  the  intent.  Thus  the  subjective  criminality 
of  the  agent  is  determined  by  the  objective  criminality  of 
the  deed.  The  one  is  the  measure  of  the  other,  and  as  only 
that  which  is  objective  and  accessible  can  be  measured  and 
determined,  it  was  sufficient  to  gauge  the  criminality  of  the 
crime  by  the  act  itself.  As  such,  it  was  a  matter  for  legal 
statutes,  for  the  law  to  determine;  for  the  law  alone  is  qual- 
ified to  appraise  the  social  status  of  conduct.  The  conclusion 
is  thus  easily  reached  that  as  the  crime  becomes  objectively 
serious  the  responsibility  increases.  Every  detail  of  the 
act  is  thus  considered  as  intentional  and  the  agent  is  held 
responsible  for  every  circumstance  aggravating  his  crime. 
It  follows  that  in  every  crime  committed  the  responsibility 
varies  for  every  offender;  and  it  varies  not  by  reason  of  a 
difference  of  nature  and  psychological  temperament  but 
by  reason  of  the  difference  of  situation  in  every  individual 
crime.  The  responsibility  varies  because  in  no  two  crimes 
are  the  outward  circumstances  precisely  alike. 

There  is  accordingly  a  place  for  the  entrance  of  individual- 
ization  in  judicial  practice,  though  clearly  for  a  very  different 
type  of  individualization  from  that  now  urged.  What  we 
of  to-day  propose  is  an  individualization  of  punishment 
determined  by  the  temperament  of  the  agent  and  by  the 
prospects  of  his  return  to  a  virtuous  life,  and  most  of  all  by 
the  degree  of  his  professional  criminality.  Such  questions 
were  not  considered  in  the  older  literature.  Learned  scholars 
did  not  deign  to  consider  them;  they  were  too  much  occu- 
pied with  theoretical  principles  and  absolute  formulae.  The 
science  of  that  day  left  application  to  current  practice;  and 


44  INDIVIDUALIZATION  OF  PUNISHMENT       [§  16 

it  is  worth  noting  that,  as  exercised  by  certain  ecclesiastical 
judges  —  under  the  influence  of  the  subjective  attitude 
which  forms  the  spirit  of  the  church  —  the  practice  quite 
commonly  took  the  form  of  a  modern  individualization.  The 
ecclesiastical  court  exercised  a  disciplinary  jurisdiction  that 
made  direct  appeal  to  the  conscience,  and  through  such 
control  aimed  to  produce  a  spiritual  reform,  —  not,  like 
political  justice,  seeking  to  avenge  society  for  the  wrong 
done  and  fixing  its  attention  upon  the  offense  without  con- 
sideration of  the  individual.  Such  practical  discipline,  how- 
ever, was  not  the  subject  matter  of  the  writers;  it  was  part 
of  experience  and  not  of  law. 

It  is  familiar  that,  according  to  the  view  which  is  as  old 
as  Scholasticism  and  closely  associated  with  it,  the  first  prin- 
ciple of  the  law  is  to  ignore  the  facts  of  life.  Apart  from 
certain  ecclesiastical  or  disciplinary  jurisdictions  in  which 
punishment  for  reform  was  uppermost,  the  prevalent  con- 
ception of  punishment  was  that  of  setting  an  example;  the 
end  was  not  the  reform  of  the  individual  but  general  in- 
timidation. Hence  the  judge,  exercising  considerable  freedom 
and  untrammeled  by  the  law,  proportioned  the  punishment 
in  each  case  to  the  requirements  of  the  policy  to  be  furthered; 
and  the  purposes  of  general  public  policy  are  very  different 
from  those  of  the  sociological  treatment  of  criminals  as  now 
attempted. 

§  16.   Early  Types  of  Individualization 

Accordingly,  in  principle  there  was  no  subjective  individ- 
ualization based  upon  the  nature  of  the  agent  and  independent 
of  the  crime  committed.  What  we  find  is  an  individualization 
based  upon  the  crime  but  detached  from  the  legal  forms  and 
the  abstract  conception  of  crime  in  order  to  keep  close  to 
the  actual  details  and  to  reproduce  their  physiognomy,  as  it 


§  16]  THE  HISTORY  OF  PUNISHMENT  45 

were,  in  the  execution  of  the  punishment.  The  punishment 
became  the  reaction,  the  recoil  of  the  act  as  realized  in  its 
setting  and  as  interpreted  by  the  courts  commissioned  to 
avenge  the  body  social  for  assaults  made  upon  it. 

Even  in  this  attitude  there  may  be  observed  two  types 
of  individualization.  The  one  relates  solely  to  the  strength 
of  the  intent;  that  is,  to  the  intrinsic  qualities  of  the  will, 
assuming  that  the  will  at  the  moment  of  action  was  more 
or  less  free  to  resist  the  temptation.  It  aims  to  appraise  the 
state  of  mind  of  the  agent;  yet  it  does  so  not  with  reference 
to  his  true  and  real  qualities,  which  form  the  basis  of  char- 
acter, as  in  the  modern  conception,  but  according  to  the 
degree  of  intent  of  the  act  committed.  The  modern  view 
would  consider  equally  the  examination  of  the  abnormal 
state  of  the  criminal,  and  thereby  determine  the  possibilities 
of  resistance.  There  would  be  an  estimate  of  the  degree 
of  freedom  at  the  moment  of  action  in  relation  to  the  act 
itself;  yet  not  an  estimate  of  the  personality  as  a  whole, 
but  of  so  much  of  it  as  participated  in  the  act  committed. 
There  would  be  an  attempt  simply  to  gauge  the  measure  of 
freedom  inherent  in  the  crime  ;  and  this  would  still  be  an 
individualization  in  terms  of  the  crime  committed,  but  con- 
sidered with  reference  to  the  will  of  the  individual.  For  it 
is  clear  that  the  greater  or  less  strength  of  the  intention 
embodied  in  the  crime  influences  its  gravity  and  the  degree 
of  emotional  indignation  which  it  arouses.  It  thus  would 
become  an  individualization  based  upon  the  degree  of  respon- 
sibility. The  ancient  law  however  did  not  recognize  it  as 
such,  at  least  not  officially;  nor  is  it  thus  found  in  the  texts 
or  in  the  commentators.  Legally,  every  intentional  act 
necessarily  involved  a  like  responsibility;  for  volition  was 
regarded  as  identical  with  responsibility;  and  there  was  no 
recognition  of  partial  responsibility. 


46  INDIVTOUALIZATION  OF  PUNISHMENT       [§  16 

The  second  type  of  individualization  as  recognized  by 
ancient  law  was  that  derived  from  the  material  circum- 
stances of  the  crime.  For  example,  no  one  murder  is  exactly 
like  another.  There  enter  into  consideration  the  fact  of 
premeditation  or  the  dominance  of  a  momentary  impulse  ; 
the  personal  relations  to  the  victim;  the  end  in  the  pursuit 
of  which  the  crime  was  committed;  the  greater  or  less  cruelty 
attending  it;  and  many  other  circumstances.  Obviously 
among  these  circumstances  some  relate  to  the  intent  and 
others  to  the  material  setting  of  the  crime;  the  former 
constitute  an  individualization  based  upon  the  degree  of 
responsibility.  This  distinction  and  th  s  psychological  an- 
alysis however  had  not  yet  appeared.  Even  when  the 
question  of  the  subjective  circumstances  was  raised  (such 
as  premeditation),  it  was  not  the  degree  of  freedom  that  was 
considered,  but  the  manner  of  the  execution  of  the  crime 
and  the  greater  or  less  degree  of  cruelty  and  unconcern  which 
it  disclosed.  Attention  was  directed  wholly  to  the  material 
circumstances  of  the  crime;  and  these  varied  with  its  ac- 
cessory details.  It  was  according  to  these  details  that  the 
punishment  was  modified  and  individually  adjusted.  It  was 
a  purely  objective  individualization;  though,  for  each  indi- 
vidual case  it  was  determined  wholly  with  reference  to  the 
material  setting  of  the  crime. 

Such  individualization  was  admitted  and  fully  practiced 
in  ancient  law.1  The  judge  had  full  power  to  adjust  the 
punishment  according  to  the  gravity  of  the  offense,  not  the 
legal,  but  the  actual  gravity;  and  in  the  determination  of 
the  penalty  he  was  not  bound  by  the  law.  The  punishment 
could  be  regulated  with  reference  to  each  action  and  in  pro- 
portion to  the  gravity  of  each  particular  crime.  There  was 

1  See  Jousse,  "Trait£  de  la  justice  criminelle,"  first  part,  HI  (edit.  Paris, 
1771),  p.  86,  seq.;  and  Imbert,  "Pratique  judiciaire,"  Book  III,  chap.  xx. 


§  17]  THE  HISTORY  OF  PUNISHMENT  47 

not  one  prescribed  punishment  for  murder  and  another  for 
theft;  there  were  merely  certain  traditional  punishments 
sanctioned  by  usage.  From  this  repository  of  traditional 
punishments  the  judge  selected  the  one  suitable  to  the 
special  case,  and  he  was  permitted  (though  it  must  be  under- 
stood that  this  was  exceptional,  and  rested  solely  with  the 
judge),  in  case  the  list  of  ordinary  legal  punishments  did 
not  provide  a  punishment  suitable  to  the  crime,  to  impose 
one  more  fitting  and  better  adjusted  to  the  case,  under  the 
name  of  an  extraordinary  punishment.  It  is  difficult  to 
conceive  a  system  of  judicial  individualization  more  elastic 
and  more  closely  conforming  to  present  conceptions  of  a 
true  criminal  economics.  The  system  has  been  called  that 
of  discretionary  punishment  ("peines  arbitrages").  And  as 
the  law  did  not  lay  down  regulations  instructing  the  judge 
as  to  his  decisions,  he  might  very  well  take  the  modern  point 
of  view,  which  classifies  by  criminals  and  not  by  crimes, 
and  individualize  the  punishment  accordingly.  If  ordinarily 
the  individualization  exercised  was  an  objective  one,  it  was 
because  the  subjective  type  did  not  conform  to  the  views 
of  the  day,  and,  indeed,  had  not  yet  been  suggested.  Other- 
wise nothing  in  the  law  would  have  prevented  the  judge  of 
the  old  regime  from  anticipating  Lombroso  and  the  position 
of  the  Italian  school. 

§  17.  The  Discretionary  Power  of  the  Judge,  and 
Individualization 

In  maintaining  that  ancient  law  had  no  legal  punishments 
in  the  modern  sense  of  the  word,  —  that  is,  punishments 
specified  by  the  law  for  designated  crimes,  —  we  follow  the 
accepted  opinion.  Ancient  law  was  unaware  of  our  modern 
principle:  "nulla  pcena,  nullum  crimen  sine  lege."  There 
were  however  certain  legal  texts  that  fixed  definite  punish- 


48  INDIVIDUALIZATION  OF  PUNISHMENT       [§  17 

ments  as  a  penalty  for  crimes  of  intent  that  carried  a  special 
criminal  status;  they  appear  in  common  law,  and  particu- 
larly in  the  Royal  Ordinances.  In  this  connection  it  is  well 
to  have  in  mind  wherein  consisted  the  free  discretion  of  the 
judge. 

Let  us  take  an  edict  carrying  a  perfectly  definite  punish- 
ment for  a  definite  crime;  for  example,  the  edict  of  Louis 
XIV  with  reference  to  poisoning.  Even  in  such  cases  the 
judge  was  not  bound  by  the  letter  of  the  law.  He  could 
mitigate  the  punishment,  though  this  was  rarely  done,  but 
particularly  he  could  increase  it  and  exceed  the  punish- 
ment prescribed  by  the  law,  and  if  the  punishment  in 
question  was  that  of  death,  he  could  impose  a  more  cruel 
torture  to  apportion  the  punishment  to  the  gravity  of  the 
crime. 

In  this  system  of  discretionary  penalties,  in  which  not 
alone  the  execution  of  the  punishment  but  the  determination 
of  the  penalty  itself  is  left  to  the  free  discretion  of  the  judge, 
we  have,  as  already  noted,  a  system  of  judicial  individual- 
ization  in  the  large  sense  of  the  word.  It  was  not  an  arbitrary 
procedure,  but  in  principle  and  practice  was  based  upon  an 
obvious  fact,  which  may  be  thus  stated:  the  law  cannot 
anticipate  the  punishment  best  suited  to  each  particular 
case;  it  can  only  set  a  scale  of  offenses  indicating  the  status 
of  the  several  crimes  as  they  affect  the  social  welfare,  and 
with  reference  to  the  danger  to  which  society  is  exposed 
through  each  class  of  crime.  But  the  law  cannot  foresee 
the  impression  produced  by  any  individual  crime  as  com- 
mitted; and  so  the  judge  alone  is  in  a  position  properly  to 
determine  at  once  the  severity  and  the  nature  of  the  punish- 
ment. Briefly,  the  law  is  unable  to  anticipate  the  mitigating 
or  aggravating  circumstances  of  the  case,  and  thus  commits 
these  to  the  charge  of  the  judge. 


§  18]  THE  HISTORY  OF  PUNISHMENT  49 

§  18.  The  Protection  of  the  Social  Interests 

In  a  system  of  this  kind  the  judge  stands  for  the  protection 
of  society.  The  judiciary  power  becomes  not  merely  the  ex- 
ecutive of  the  law  but  the  coadjutor  of  the  law  in  its  chief 
function,  that  of  providing  public  security.  This  becomes 
a  function  of  the  judiciary  institution  rather  than  of  legal 
determination.  The  law  in  itself  is  powerless  to  effect  this, 
because  the  requirements  of  social  protection  vary  for  every 
crime  and  for  every  criminal.  The  social  gravity  of  the 
offense  cannot  be  determined  in  advance.  The  law  may 
very  well  say  that  murder  in  itself  is  more  serious  than  theft 
because  the  lives  of  citizens  are  more  precious  than  their 
belongings;  but  how  can  it  anticipate  the  gravity  of  each 
particular  murder?  In  fact,  all  that  the  law  can  do  is  to 
set  the  relative  scale  of  values  of  the  interests  protected 
by  punishment;  for  punishment  has  no  other  material 
end.  It  has,  however,  a  specific  purpose,  which  is  to  prevent 
the  repetition  of  crime.  The  penalty  provides  a  formal  pro- 
tection; and  this  protection  is  directed  in  behalf  of  social 
values,  of  interests  that  have  a  social  value  for  the  individual: 
his  life,  his  property,  his  honor.  This  is  Liszt's  theory 
of  the  "Rechtsgiiter."  l  From  a  social  and  legal  point  of 
view  the  law  serves  merely  to  appraise  the  relative  values 
of  the  interests  protected  by  punishment.  But  to  anticipate 
the  relation  of  the  punishment  to  a  particular  crime  com- 
mitted is  manifestly  impossible.  The  law  can  only  indicate 
that  life  should  be  more  strongly  protected  than  property. 
But  to  conclude  in  the  abstract  and  as  a  psychological  con- 
clusion that  a  murderer  is  more  criminal  than  a  thief  and 
is  so  in  all  cases,  is  an  assumption  that  may  readily  prove 

1  Liszt,  "Lehrbuch  des  deutschen  Strafrechts"  (edit.  1905),  §  12; 
see  Ihering,  "Der  Zweck  im  Recht,"  Vol.  I  (second  edit.),  p.  492;  Binding, 
"Die  Normen"  (edit.  1890),  §  50,  p.  338. 


50  INDIVIDUALIZATION  OF  PUNISHMENT       [§  18 

to  be  absurd.  In  ancient  law  the  judge  had  the  authority 
to  punish  a  murderer  no  differently  than  a  thief;  and  es- 
pecially could  he  apply  to  theft  punishments  ordinarily 
reserved  for  murder.  Such  was  the  province  of  justice. 

If,  in  a  measure,  punishment  is  the  protest  of  public  sen- 
timent and  the  expression  of  social  reproof,  it  is  not  possible 
to  anticipate  the  emotion  and  the  feeling  of  indignation 
aroused,  and  to  take  account  thereof  in  the  application  of 
punishment  in  each  particular  crime.  If  the  judge  is  to 
become  the  interpreter  of  communal  justice,  he  alone  can 
judge  the  social  disturbance  occasioned  by  one  crime  or  an- 
other. The  judge  becomes,  in  fact,  the  trustee  of  public 
security,  and  in  ancient  law  he  played  the  part  according 
to  his  lights.  It  is  hardly  necessary  to  recall  the  spirit  in 
which  he  undertook  the  task  and  applied  the  individual- 
ization  of  punishment  with  which  he  was  charged.  Bailiffs, 
wardens,  courts  of  final  jurisdiction,  and  appellate  courts 
rivalled  one  another  in  the  zeal  and  in  the  severity  —  not 
to  use  a  stronger  expression  —  of  the  choice  of  punishments 
and  their  application.  The  policy  of  a  judicial  individual- 
ization  entrusted  the  social  defense  to  the  body  of  judges; 
it  placed  it  in  good  hands.  The  France  of  those  good  old 
days  did  not  have  the  problem  of  the  habitual  criminal; 
and  this  is  hardly  surprising,  when  one  remembers  that  in 
those  days  criminals  were  hanged  for  their  first  theft.  Such 
severity,  not  to  say  barbarity,  of  practice  may  profitably 
be  recalled  in  order  to  understand  the  spirit  of  the  penal 
system  that  had  its  origin  in  the  Revolution  and  in  the 
codification  made  during  the  Empire;  or,  more  correctly 
expressed,  that  was  due  to  the  classic  spirit  which  they 
reflected,  the  psychology  of  which  Taine  has  recorded  in 
his  memorable  pages.1 

1  Taine,  "L'ancien  regime,"  Book  III. 


§  19]  THE  HISTORY  OF  PUNISHMENT  51 

§  19.   The  Classical  and  the  Historical  Position 

It  has  been  agreed  to  call  this  purely  objective  penal  sys- 
tem the  classic  theory,  —  not  in  the  traditional  sense,  but  in 
conformity  with  the  spirit  of  abstract  and  logical  general- 
ization, characteristic  of  intellectual  activity  in  France 
for  at  least  two  centuries.  Against  such  classicism  a  reac- 
tion has  appeared,  affecting  all  realms  of  thought;  to  it  the 
works  of  Taine  and  of  the  historical  school  have  influentially 
contributed.  But  in  fairness  it  should  be  pointed  out  how 
far  the  origins  of  the  classic  theory  form  its  justification. 
It  arose  at  a  time  when  history  had  not  yet  become,  as  it  is 
now,  a  scientific  study,  but  was  looked  upon  as  an  unalterable 
record,  despotic  and  austere.  The  present  historical  school  is 
wholly  opposed  to  any  such  view.  It  favors  evolution  and 
progress,  and  rejects  the  conception  of  history  as  the  crystal- 
lization of  facts.  The  classic  position  in  turn  was  the 
issue  of  a  protest  against  the  subjective  system,  which  made 
it  possible  for  the  judge  to  wreak  personal  vengeance  for  the 
slightest  transgression.1 

As  is  true  of  political  parties,  the  pendulum  swings  from 
one  policy  to  another.  Accordingly  let  us  be  careful  not  to 
substitute  for  the  classic  system,  which  has  had  its  day,  a 
"subjectivism"  that  would  make  it  possible  for  a  judge  to 
sentence  to  the  gallows  for  slight  offenses,  or  to  secure  im- 
munity or  confinement  in  an  asylum  for  capital  crimes. 
History  gives  no  support  to  a  rigid  fatalism.  It  is  a  living 
determinism  in  which  we  form  the  decisive  factors.  It  is  for 
us  to  direct  the  course  of  history  towards  the  welfare  of  the 
social  life  and  the  progress  of  humanity. 

1  A.  Esmein,  "Precis  616mentaire  de  1'Histoire  du  droit  frangais  de  1789  a 
1814"  (Paris,  1908).  p.  250,  seq. 


CHAPTER  III 

THE  CLASSIC  SCHOOL 

§  20.  The  Eighteenth  Century  Philosophy  of  Crime. 

§  21.  Modifications  and  Concessions  of  Later  Codes. 

§  22.  Advantages  and  Defects  of  the  Classic  System. 

§  23.  The  Reaction  and  the  Neo-Classic  Transition. 

§  20.  The  Eighteenth  Century  Philosophy  of  Crime 

THE  preceding  historical  survey  prepares  the  way  for  a 
review  of  the  classic  doctrine.  If  we  are  justified  in  taking 
a  harsh  view  of  this  system,  it  is  by  reason  of  its  present 
consequences  and  not  by  any  lack  of  justification  in  the  past. 
What  is  conventionally  known  as  the  classic  system  of  pun- 
ishment is  the  direct  issue  of  the  philosophical  school  and 
of  the  principles  of  Rousseau's  "Social  Contract."  Its  most 
distinguished  representatives  are  Beccaria  in  Italy,  Bentham 
in  England,  and  Feuerbach  in  Germany.  It  was  inevitable 
that  the  general  intellectual  movement  of  the  eighteenth 
century  should  include  a  consideration  of  penal  law,  and 
of  the  arbitrary  and  cruel  practices  that  then  characterized 
it.  The  immediate  and  urgent  need  was  to  abolish  the  ar- 
bitrary power  of  the  judge  and  to  mitigate  the  severity  of 
punishments.  In  spirit  and  expression  ancient  law  favored 
severe  and  arbitrary  punishments  along  with  all  the  abuses 
to  which  they  led.  Accordingly  the  first  measures  of  reform 
were  directed  in  a  practical  spirit  against  the  prevalent  sys- 
tem of  punishments.  Yet  the  school  of  eighteenth  century 
thinkers  was  primarily  one  of  doctrinaires  and  theorists. 


§20]  THE  CLASSIC  SCHOOL  53 

They  could  not  conceive  of  practical  reform  unrelated  to  a 
philosophical  basis. 

However,  before  abolishing  arbitrary  forms  of  punish- 
ment, the  philosophers  of  the  eighteenth  century  stopped 
to  inquire  as  to  the  nature  of  punishment  and  the  origin 
of  the  right  to  punish.  The  latter  problem,  simply  disposed 
of  by  history  and  sociology  as  an  inherent  right  of  society, 
was  in  reality  a  perplexing  philosophical  issue;  and  par- 
ticularly for  those  who  withdrew  from  the  individualistic 
position  of  Rousseau 1  and  the  Encyclopedists.  To  claim 
the  right  of  vengeance  for  society  is  to  return  to  savagery 
and  places  society  on  a  par  with  the  victor  who  puts  his 
prisoners  to  death;  to  base  the  right  on  the  ground  of  an 
expiation  through  punishment  is  to  assume  the  position  of 
religious  dogmatism.  The  only  other  ground  for  justification 
of  punishment  is  its  deterrent  effect  —  to  make  the  punish- 
ment of  the  guilty  serve  to  intimidate  those  tempted  to 
imitate  their  example,  —  a  general  or  collective  prevention, 
as  the  Germans  say. 

By  what  right  does  society  bring  to  bear  upon  'the  offender 
such  collective  prevention  as  proceeds  by  depriving  him  of 
liberty  or  of  life?  In  a  system  founded  upon  inalienable 
personal  rights,  shall  the  State  have  authority  over  life  and 
liberty?  Rousseau  would  reply  that  this  could  not  be  done 
unless  a  citizen  had  forfeited  his  right  to  liberty,  or  even  to 
life,  by  reason  of  an  attempt  against  the  welfare  of  the  com- 
munity, —  a  position  involving  the  theory  of  the  "  social 
compact."  The  right  to  punish  comes  to  society  by  way 
of  a  contract,  and  may  be  exercised  only  within  the  limits 
of  such  presumed  contract.  Such  limits  prescribe  punish- 

1  For  Rousseau's  political  theories  and  their  connection  with  criminology, 
see  Liepmann,  "Die  Rechtsphilosophie  des  Jean-Jacques  Rousseau"  (Berlin, 
1898),  especially  chap.  iii. 


64  INDIVIDUALIZATION  OF  PUNISHMENT       [§20 

incuts  on  the  basis  of  equal  rights.  Any  one  may  be  called 
upon  to  forfeit  his  right  to  liberty,  but  upon  the  condition 
that  others  do  the  same.  Punishment  is  thus  an  enforced 
exercise  of  the  general  will;  this,  as  described  by  Rousseau, 
indicates  the  combined  concessions  made  by  individual 
citizens  and  thus  becomes  the  expression  of  law. 

Let  us  return  to  the  primitive  theory  as  embodied  in  the 
Salic  law.  There  punishment  becomes  a  right  of  the  in- 
dividual guaranteed  by  the  law.  The  right  pertains  to  the 
injured  party,  which,  in  this  case,  is  society.  But  it  is  like- 
wise a  personal  right  of  the  offender,  who  has  the  vested 
right  of  paying  no  more  than  another  and  of  paying  the 
precise  rating  of  the  injury,  whether  by  fine  or  by  imprison- 
ment is  immaterial.  The  price  becomes  a  prescribed  and 
invariable  forfeit:  so  much  for  such  and  such  a  crime  or 
transgression. 

This  system  of  criminal  law  obtained  at  the  time  of  the 
Revolution.  In  1791  the  French  code,  however  imperfect 
in  itself,  admirably  reflected  the  spirit  of  the  times.  Pun- 
ishments were  fixed  by  law  which  permitted  the  judge  no 
discretion  to  fit  them  to  the  crime.  Punishments  were  set 
in  accordance  with  the  code  of  1810,  but,  with  the  obvious 
exception  of  life  sentences,  presented  a  maximum  and  mini- 
mum limit,  between  which  the  judge  might  vary  and  adjust 
the  punishment  to  the  particular  circumstances  of  each 
offense.  In  contrast  to  what  obtained  in  ancient  law,  the 
judge's  power  of  sentence  could  be  exercised  only  between 
the  two  set  limits.  In  the  system  of  the  penal  code  of  1791 
these  limits  did  not  appear.  In  it  punishment  was  absolutely 
fixed,  as  in  the  Salic  law.  It  was  a  fixed  tariff;  for  such  a  grade 
of  theft,  so  many  years  in  prison  or  at  penal  servitude,  —  in 
principle,  not  a  day  more  or  less.  No  account  was  taken 
of  the  circumstances  of  the  deed,  nor  of  the  possible  prov- 


§20]  THE  CLASSIC  SCHOOL  55 

ocation,  nor  of  the  antecedent  situation.  All  who  had 
committed  the  same  kind  of  theft  were  placed  upon  the  same 
footing.  They  were  regarded  as  equally  responsible.  The 
punishment  imposed  was  the  same  for  all.  The  judge  was  no 
more  than  a  mechanical  instrument  to  administer  the  pun- 
ishment; he  was  the  automatic  wheel  of  fate  that  dealt  the 
punishment  as  the  law  prescribed;  his  sole  function  was 
to  confirm  the  evidence  of  the  facts. 

This  system  of  penal  law  was  accordingly  objective,  as 
was  the  Salic  law.  There  was  however  much  of  the  spirit  of 
the  penal  law  of  the  sixth  century  that  could  not  be  revived. 
For  civilization  had  progressed  and  there  was  a  background 
of  Christian  conceptions  that  could  not  be  set  aside.  The 
objective  equity  of  the  Salic  law  may  be  appropriately  repre- 
sented as  a  system  of  indemnities  to  be  paid,  as  a  penal  law 
that  ignored  responsibility.  But  the  Christian  spiritual 
conception  of  freedom  as  a  personal  and  psychological 
possession  had  never  been  more  exalted.  Society  had  no 
power  to  punish  by  the  deprivation  of  liberty  except  when 
such  liberty  had  been  voluntarily  jeopardized.  Punishment 
could  be  directed  only  against  a  free  act.  The  judge  had 
merely  to  examine  to  what  extent  the  agent  may  have  been 
morally  free  in  his  actions. 

It  was  presumed  that  those  guilty  of  the  same  crime  (theft, 
murder,  etc.)  must  have  been  equally  free  agents  and  con- 
sequently equally  responsible.  Each  crime  was  assumed  to 
involve  a  like  moral  freedom,  and  to  imply  a  like  responsibil- 
ity. All  this  corresponded  substantially  to  the  conception 
of  the  freedom  of  the  will  in  the  traditional  philosophy.  If 
freedom  is  to  be  considered  as  the  power  to  decide  in  each 
situation  by  a  controlling  choice  with  no  intrusion  of  any 
other  inner  impulse,  then  there  can  be  no  such  thing  as 
partial  freedom.  The  status  of  every  man  in  resolving  upon 


56  INDIVIDUALIZATION  OF  PUNISHMENT       [§  21 

the  same  act  is  parallel.  He  has  the  choice  of  two  courses: 
to  act  or  to  refrain.  The  responsibility  varies  not  with  the 
measure  of  freedom  but  with  the  gravity  of  the  act  in  ques- 
tion. It  is  not  the  place  of  the  law  to  consider  anything  but 
the  social  and  material  seriousness  of  the  crime.  All  guilty 
of  the  same  crime  present  the  same  responsibility.  Hence 
there  is  no  pertinence  in  taking  into  account  the  agent,  no 
advantage  in  considering  the  personality.  Ignoring  such 
considerations  the  deed  alone  is  to  be  dealt  with.  That  the 
same  responsibility  merits  the  same  punishment  thus  be- 
comes the  conclusion  of  a  supposedly  spiritual  theory  of  the 
freedom  of  the  will. 

By  the  exercise  of  practical  reasoning  analogous  to  that 
expressed  in  primitive  law,  the  criminals  themselves  reached 
about  the  same  position.  To  them  the  legal  punishment, 
definitely  set  by  the  law,  stood  as  the  risk  incurred,  as  the 
price  of  the  crime.  As  von  Liszt  remarks,  the  penal  code 
becomes  the  true  Magna  Charta  of  the  criminal.  It  is  his 
written  constitution;  he  knows  just  how  far  he  may  venture 
within  the  law;  and  if  he  brings  the  arm  of  the  law  down 
upon  him,  he  knows  precisely  the  risk  he  incurs.  The  main 
point  is  to  be  a  good  sport  and  a  good  loser,  and  consider 
the  many  successes  as  against  the  occasional  failure.  We 
are  now  beginning  to  recognize  that  in  a  situation  of  this 
kind  the  odds  of  the  game  do  not  favor  society. 

§  21.  Modifications  and  Concessions  of  Later  Codes 

Though  the  severity  of  this  objective  classic  theory  of  the 
Revolution  was  tempered  in  the  penal  code  of  1810,  its 
essential  principles  underwent  no  change.  But  the  system 
of  set  and  invariable  punishments  was  modified.  There 
were  introduced,  as  above  noted,  variable  punishments  be- 
tween the  two  set  limits  fixed  by  the  law.  But  this  implied 


§21]  THE  CLASSIC  SCHOOL  57 

no  change  of  attitude  in  the  classic  theory  of  responsibility. 
The  judge  acquired  some  discretion  in  setting  the  punish- 
ment, which  in  appearance  suggested  the  power  of  individ- 
ualization  ;  yet  this  did  not  imply  that  the  subjective 
circumstances  in  terms  of  responsibility  were  deemed  ade- 
quate to  modify  the  punishment  for  a  given  crime.  Respon- 
sibility was  determined,  as  before,  by  the  freedom  of  the  will; 
and  a  free  will  implied  the  power  to  choose  equally  between 
two  courses,  which  in  turn  depended  upon  the  motives  be- 
tween which  the  choice  was  to  be  made.  But  the  issue  is 
not  predetermined  nor  definitely  conditioned  by  the  motives; 
it  is  not  regarded  as  the  necessary  consequence  of  a  pre- 
determined subjective  state,  or  otherwise  than  as  a  supreme 
act  of  freedom.  The  free  choice  is  like  an  act  of  sovereign 
creation,  by  which  the  ego  in  the  choice  of  conduct  decides 
as  would  an  absolute  master,  unaffected  by  any  imposed 
pressure.  The  creative  act  partakes  of  the  absolute;  for 
the  same  situation  it  inevitably  remains  the  same  for  all. 
If  the  will  were  subject  to  an  extraneous  influence  it  would 
no  longer  be  free.  As  soon  as  any  measure  of  influence  by 
circumstances  is  admitted,  the  door  is  opened  for  all  possible 
influences,  and  inevitably  admits  the  extreme  supposition 
of  an  absolute  determinism.  There  is  no  middle  ground. 
A  partial  freedom  equally  involves  determinism. 

The  variable  factor  affects  only  the  outward  conditions 
of  responsibility,  that  is,  the  material  circumstances  of  the 
act.  For  even  an  objective  view  of  crime,  as  in  ancient  law, 
recognized  that  crimes  were  never  alike;  such  objective 
variations  the  law  could  not  anticipate  but  committed  to 
the  jurisdiction  of  the  judge. 

Consequently  the  penal  code  of  1810  established  not  a 
judicial  discretion  but  a  certain  elasticity  of  punishment, 
by  introducing  sentences  variable  between  two  fixed  limits. 


58  INDIVIDUALIZATION  OF  PUNISHMENT       [§22 

It  is  well  to  remember  that  in  theory  the  code  of  1810  did 
not  admit  extenuating  circumstances  for  crime.  The  judge 
had  no  authority  to  lower  the  punishment  below  the  legal 
limit,  or  to  substitute  one  punishment  for  another.  In  cases 
in  which  the  law  imposed  penal  servitude  for  stated  periods, 
the  judge  could  impose  from  five  to  twenty  years;  he  could 
not  substitute  solitary  confinement.  Whatever  the  circum- 
stantial details  of  the  crime  may  have  been,  the  crime,  in 
terms  of  its  class,  and  especially  of  its  social  gravity,  remained 
the  same.  If,  for  example,  it  was  a  case  of  burglary,  then 
the  offender  had  to  undergo  the  punishment  for  that  offense; 
and  in  case  of  murder,  this  system  reached  the  almost  in- 
conceivable conclusion  that  all  murderers  were  to  be  sub- 
jected to  the  same  degree  of  punishment.  Murder,  whatever 
the  circumstances,  was  liable  to  penal  servitude  for  life; 
and,  as  no  extenuating  circumstances  were  considered,  all 
murderers  without  distinction  were  given  life  sentences. 

It  is  evident  that  the  position  of  the  code  of  1810  was 
fundamentally  that  of  1791  and  was  purely  objective,  placing 
all  guilty  of  the  same  crime  on  the  same  footing.  Quite 
after  the  manner  of  the  theorists  of  1789  who  constructed 
their  political  system  upon  the  basis  of  an  abstract  con- 
ception of  humanity  —  a  type  that  had  no  real  existence  — 
the  legislators  of  1810  established  their  penal  code  in  terms 
of  the  abstract  criminal,  —  an  anonymous  individual  found 
guilty  of  a  specified  crime. 

§  22.  Advantages  and  Defects  of  the  Classic  System 

This  penal  system  had  the  great  merit  of  treating  all  alike 
and  the  still  more  indisputable  merit  of  forming  an  adequate 
check  against  arbitrary  sentences.  But  the  equality  thus  re- 
alized may  well  be  considered  most  unfair  in  that  it  treated 
all  men  as  mere  digits.  As  applied  to  criminals,  this  equality 


§22]  THE  CLASSIC  SCHOOL  59 

in  terms  of  punishment  commonly  ran  the  risk  of  introducing 
a  cruel  and  intolerable  injustice,  in  that  it  brought  together 
in  perilous  promiscuous  association  those  guilty  of  the  same 
crime,  whether  they  happened  to  be  first  offenders,  habitual 
criminals,  men  blinded  by  the  sudden  passion  of  the  moment, 
thorough  degenerates,  those  unaffected  in  character  by 
their  crime,  or  those  whom  the  system  had  thoroughly  con- 
taminated and  who  became  the  means  of  corrupting  their 
associates.  For  all,  the  punishment  was  similar  or  nearly 
so,  and  upon  this  feature  the  system  prided  itself.  But 
the  equality  was  only  in  name,  and  in  its  popular  appeal; 
for  the  equality  that  justice  demands  is  an  equality  of  treat- 
ment for  the  same  established  degree  of  criminality.  But 
how  can  one  establish  any  comparison  between  the  insensi- 
tiveness  of  the  recidivist,  hardened  to  prison  life,  a  total 
stranger  to  the  exciting  emotions  of  a  first  sentence,  and  the 
keen  impressionability  of  the  first  offender  upon  contact 
with  his  cruel  and  humiliating  fate;  or  between  a  vagrant, 
whose  self-esteem  is  unaffected  by  punishment  save  in  the 
small  measure  of  character  that  he  may  have  saved  from  the 
general  wreck  and  ruin  of  his  career,  and  a  man  of  social 
station  whose  position  is  involved  in  proportion  to  the  con- 
sideration he  enjoyed;  or,  once  more,  between  one  accustomed 
to  the  amenities  of  life,  for  whom  the  prison  routine  must  be 
intolerable,  and  the  poor  fellow  without  food  and  shelter 
who  has  come  to  look  upon  jails  and  even  the  penitentiaries 
as  dispensers  of  hospitality,  offering  an  assured  living  and  a 
shelter  for  the  unemployed. 

The  sole  virtue  of  the  system  —  and  though  it  has  no 
other  it  may  be  conceded  that  it  accomplishes  this  perfectly, 
—  lies  in  its  elimination  of  arbitrary  sentences.  In  every  case 
for  the  same  crime  punishment  is  prescribed  by  the  law.  The 
judge  has  no  power  to  alter  it;  he  has  no  occasion  to  probe 


60  INDIVIDUALIZATION  OF  PUNISHMENT       [§22 

the  consciences  nor  examine  the  hearts  of  those  whom  he 
sentences.  The  mental  condition  at  the  moment  of  the  crime 
is  not  considered.  A  crime  has  been  committed;  there  is 
an  injury  to  be  made  good  towards  society  and  the  law. 
The  reparation  is  fixed  by  the  law  ;  it  must  be  paid  in  the 
same  terms  for  all  cases,  and  regulated  not  by  the  hardship 
which  the  punishment  imposes  upon  the  individual  but  by 
the  measure  of  injury  which  the  crime  has  inflicted  upon 
society.  The  injury  to  an  individual  or  to  society  remains 
the  same,  independently  of  the  agent.  The  punishment  is  an 
indemnity  and  the  criminal  charge  approaches  the  status 
of  a  civil  injury.  Both  are  based  upon  the  idea  of  damage, 
and  both  result  in  a  reparation  corresponding  to  the  injury 
done,  without  involving  the  consideration  of  the  personality 
of  the  doer.  The  careless  man,  who,  in  passing,  breaks  a 
show-window  must  pay  its  full  value  whatever  may  be  his 
resources.  This  is  a  trifle  to  the  man  of  wealth,  while  it 
considerably  embarrasses  a  poor  man,  dependent  upon  a 
small  income.  The  same  principle  is  applied  to  criminal 
offenses  that  give  evidence  of  a  vicious  disposition.  When 
the  vicious  refuse  to  meet  the  demands  of  social  life,  they  pay 
like  anybody  else;  only  they  pay  in  the  coin  of  imprisonment. 
But  the  nature  of  the  debt  is  not  determined  by  that  of  the 
debtor.  Whether  the  latter  feels  the  injury  to  his  honor  or 
to  his  future,  and  hi  what  degree,  society  does  not  consider. 
The  theory  is  notably  false,  inhuman,  and  supremely  unjust, 
but  obviously  simple  and  easy  to  apply.  Here  is  an  injury 
to  be  repaired,  and  there  a  punishment  that  will  make  it 
good.  It  resolves  itself  into  a  question  of  penalty  and  rep- 
aration, a  question  of  the  proportionality  between  the  ill 
which  the  offender  has  caused  and  the  ill  he  is  to  undergo. 
This  proportionality  expresses  the  summary  and  harsh 
conception  of  punishment  and  the  undeveloped  conception 


§23]  THE  CLASSIC  SCHOOL  61 

of  justice  which  it  reflects.  It  is  at  once  barbaric  and  crude, 
to  say  nothing  of  its  being  the  most  dangerous  theory  for 
society;  and  it  is  so,  because,  though  it  attempts  to  make 
criminals  pay  for  their  debts,  it  does  not  succeed  in  preventing 
them  from  contracting  new  and  equally  irresponsible  ones. 

§  23.  The  Reaction  and  the  Neo-Classic  Transition 

However  this  may  be,  such  was  the  system;  and  it  may 
be  summarized  hi  this  formula:  the  punishment  for  the  same 
crime  should  be  the  same,  because  the  responsibility  is  the 
same.  As  a  system  recognizing  responsibility  in  its  objective 
aspects  alone,  it  considers  only  the  material  injury  inflicted 
and  in  no  measure  the  state  of  mind  of  the  transgressor. 

At  every  point  this  artificial  and  abstract  construction 
runs  counter  to  the  facts  of  life.  It  sets  up  abstractions  and 
constructions  of  a  wholly  logical  and  ideal  type,  while  in 
practice  criminal  law  must  deal  with  concrete  realities. 
Ultimately,  practice  must  make  or  mar  every  system.  Asa 
consequence  a  neo-classic  theory  is  coming  to  the  front,  which, 
without  abandoning  the  classic  position  and  while  taking 
its  stand  upon  the  same  data,  is  yet  proposing  to  transform 
and  revolutionize  the  legal  structure  of  the  penal  code.  It 
is  developing  apart  from  the  law  and  even  in  opposition  to 
it.  It  is  proceeding  under  the  influence  of  the  facts  primarily, 
but  also  under  the  inspiration  of  a  new  school,  properly 
called  the  eclectic  school.  In  a  measure  it  reflects  the  ac- 
credited traditional  position;  yet  it  contributes  a  new  in- 
sight growing  out  of  the  increased  emphasis  of  the  subjective 
aspects  of  the  problem  of  crime,  and  contributes  as  well  to 
the  complementary  problem  of  social  protection.  A  similar 
emphasis  is  placed  upon  conditions  and  their  investigation, 
which  in  turn  is  a  creditable  characteristic  of  the  French 
school.  It  proceeds  directly  to  conclusions  without  sue- 


62  INDIVIDUALIZATION  OF  PUNISHMENT       [§  23 

cumbing  to  the  attraction  of  theories,  and  keeps  to  its 
practical  task  without  the  minute  discussions  of  the  purpose 
of  punishment,  which  appear  in  the  German  writers. 

The  movement  presents  a  distinct  revival  of  interest.  But 
the  neo-classic  theory  is  as  yet  only  an  abstract  in  outline 
of  a  future  construction;  the  detailed  features  have  still  to 
be  brought  together  and  shaped  to  a  system.  This  must 
be  borne  in  mind  in  considering,  as  is  next  to  be  done,  this 
newer  doctrine.  It  presents  a  position  sufficiently  definite 
and  clear-cut  in  its  larger  features,  yet  it  is  quite  variously 
developed  according  to  the  personally  favored  views  of  its 
several  loyal  adherents,  each  of  whom  seems  to  bring  for- 
ward a  new  and  different  shade  of  opinion.  Indeed,  if  atten- 
tion were  to  be  confined  to  these  several  dissensions  and 
reservations,  the  movement 1  would  seem  to  dissolve  into  a 
fictitious  unity  without  any  practical  reality.  What  follows 
may  serve  to  correct  such  impression. 

1  Its  most  distinguished  representative  is  Rossi.  Its  adherents  include 
distinguished  university  professors,  such  as  M.  Ortolan.  The  school  is 
further  represented  by  such  brilliant  exponents  as  M .  Garraud  (see  his  Precis 
du  droit  criminel,  Paris,  1906),  whose  able  writings  are  deservedly  popular. 
The  perspective  of  the  data  and  conclusions  is  well  set  forth  in  the  works 
of  M .  Joly.  It  is  the  inspiration  of  the  work  of  the  Socittt  gtnbraLe  des  pri- 
sons. It  is  also  finding  its  way  into  academic  instruction,  such  as  the  courses 
given  hi  Paris  by  M.  Leveiltt;  and  is  represented  by  the  contributions  of  the 
representatives  of  the  higher  education,  —  M.  Le  Poittevin,  M.  Gar$on,  and 
M .  Garraud.  See  also  the  account  of  the  new  modern  judicial  school  —  as  it 
calls  itself  —  hi  the  study  of  Ugo  Conti,  "II  delinquente  nel  diritto  criminale, " 
in  the  Archivio  giuridico,  Vol.  LII  (1894).  p.  266,  seq. 


CHAPTER  IV 

THE  NEO-CLASSIC  SCHOOL  AND  INDIVIDUALIZATION   BASED 
UPON  RESPONSIBILITY 

§  24.  The  Assumption  of  Free  Will:  the  Fallacy  involved. 

§  25.  Empirical  Conditions  of  Freedom:  Premeditation. 

§  26.  Potential  and  Actual  Freedom:  Applications. 

§  27.  The  Social  Regulation  of  Conduct. 

§  28.  Responsibility  proportioned  to  the  Degree  of  Freedom;  Irresponsibility 

and  its  Establishment. 

§  29.  The  Basis  of  Mitigation  and  of  Exemption  from  Punishment. 

§  80.  The    Individualization    thus    resulting;     Practical    and    Theoretical 

Objections. 

§  31.  Remote  and  Immediate  Responsibility. 

§  32.  The  Social  Responsibility  for  Crime. 

§  33.  Motives  and  the  Impressionism  of  Juries. 

§  34.  Individualization  resulting  from  the  Variable  Attitude  of  Juries. 

§  24.   The  Assumption  of  Free  Will :  the  Fallacy  involved 

IN  common  with  developing  systems  the  new  movement 
in  penology  presents  two  aspects  ;  the  one  mainly  destruc- 
tive, and  the  other  constructive.  It  is  likewise  natural  in 
the  evolution  of  a  doctrine  that  it  should  proceed  upon  the 
criticism  of  existing  institutions. 

Let  us  consider  the  critical  side.  The  classic  system, 
though  apparently  simple,  as  soon  as  it  enters  the  field  of 
application,  finds  itself  directly  in  conflict  with  two  ir- 
resistible forces,  public  opinion  and  science.  It  is  in  conflict 
with  the  former  because  the  classic  penal  system  inexorably 
places  every  one  upon  the  same  footing,  treating  alike  those 
who  may  claim  attention  and  sympathy,  and  those  who 
excite  aversion.  It  is  in  conflict  with  science  because  it  is 


64  INDIVIDUALIZATION  OF  PUNISHMENT       [§24 

based  on  a  supposition  at  variance  with  established  truth, — 
the  supposition  that  every  man  in  the  same  situation  enjoys 
a  like  freedom  of  action.  In  this  issue  popular  justice,  which 
judges  the  man  in  preference  to  his  act,  is  in  full  accord  with 
the  justice  of  equity;  for  the  summary  justice  that  disre- 
gards distinctions  and  allows  no  concessions  violates  the 
common  instincts  of  humanity  and  charity.  Men  of  science, 
philosophers,  physicians,  and  jurists  alike  refuse  to  accept 
this  antiquated  view.  They  are  almost  unanimous  in  re- 
fusing to  admit  that  a  like  freedom  of  action  obtains  under 
like  conditions,  or  that  a  crime  is  to  be  considered  only  in 
terms  of  its  outward  character  and  the  gravity  of  the  offense, 
and  not  in  terms  of  the  degree  of  inner  conflict  which  had 
first  to  be  overcome.  A  distinct  change  is  observable  in 
the  conception  of  responsibility  and  an  approach  is  made 
to  an  individualization  based  thereupon  ;  it  appears  as 
well  in  theory  as  in  practice,  in  the  exposition  of  principles 
and  in  the  attitude  of  juries. 

A  new  epoch  is  approaching,  marking  a  development  or 
rather  a  disintegration  of  the  older  classic  position.  This 
disintegration  is  significant  and  is  demanded  by  the  logic 
of  events.  The  older  classic  school  rested  upon  a  fiction 
which  consisted  in  believing  that  in  regard  to  the  same  act 
every  man  had  a  like  freedom  of  action;  the  newer  view 
replaces  it  by  a  truth.  The  older  position  was  based  on 
two  assumptions:  the  first,  the  belief  that  every  one  who 
realized  the  nature  of  his  acts  was  necessarily  free,  for  every 
willed  action  was  regarded  as  a  free  act  ;  the  second,  the 
belief  that  freedom  existed  to  a  like  extent  for  all  men  with 
reference  to  the  same  act.  If  such  were  really  the  case,  if 
for  all  persons  there  were  operative  identical  factors  of  equal 
value  and  degree,  there  would  be  no  need  to  consider  the 
individual.  He  might  as  well  be  eliminated  from  the  penal 


§24]  THE  NEO-CLASSIC  SCHOOL  65 

equation,  —  just  as  in  an  algebraic  equation,  equal  quan- 
tities on  the  two  sides  may  be  cancelled. 

But  can  the  freedom  of  the  will  be  so  simply  conceived? 
Let  us  consider  the  first  assumption,  that  every  willed  act 
is  a  free  act.  The  formula  may  be  accepted  in  the  sense  in 
which  the  "spiritualists"  maintain  that  every  voluntary 
act  emanates  from  a  being  capable  of  exercising  freedom. 
But  this  statement  must  not  be  confused  with  the  classic 
formula  of  the  French  penal  law  which  held  that  every  vol- 
untary act  was  a  free  act.  Volition  and  freedom  are  not  to 
be  made  identical.  To  posit  these  as  the  two  terms  of  an 
equation  is  wholly  false. 

The  fallacy  enters  because  a  possible  state  of  affairs  is 
confused  with  the  situation  that  actually  is  realized.  As  a 
possibility  the  deed  accomplished  may  be  considered  as  on 
a  par  with  the  alternative  of  restraint.  A  man  fires  a  gun 
at  another;  we  know  that  to  fire  or  not  to  fire  are  like  pos- 
sibilities. We  conclude  that  the  murderer  was  well  able  to 
realize  the  alternatives,  to  act  or  to  refrain.  If  we  believe 
thereby  to  have  proven  that  he  was  as  free  to  act  in  the  one 
way  as  in  the  other,  and  thus  to  have  established  the  free- 
dom of  his  will,  we  are  relying  upon  an  argument  that 
clearly  is  fallacious.  The  fallacy  consists  in  substituting 
a  general  and  abstract  situation  for  a  special  and  concrete 
one.  It  is  true  that  man  abstractly  considered  enjoys  the 
potential  power  to  realize  an  act  or  to  refrain  therefrom. 
But  does  this  prove  that  a  particular  man  at  a  particular 
juncture  of  his  career  enjoyed  the  moral  freedom  to  deter- 
mine his  conduct?  This  we  cannot  know.  It  is  as  though 
one  were  to  say  that  a  horse  when  unrestrained  may  go 
forward  or  backward;  he  has  the  same  control,  the  same 
possibility  of  either  movement.  If  he  goes  forward,  does 
it  follow  that  he  has  chosen  one  alternative  rather  than  the 


66  INDIVIDUALIZATION  OF  PUNISHMENT       [§  24 

other?  Does  it  follow  that,  as  a  free  moral  agent,  he  has 
made  a  free  choice?  The  situation  may  really  have  been 
like  that  of  Buridan's  ass  placed  between  two  bundles  of 
hay.  The  creature  exhibits  little  if  any  hesitation.  Hunger 
decides;  and  a  physiological  instinct  determines  the  re- 
action. He  begins  with  either  of  the  two  bundles  that 
happens  to  be  the  more  convenient,  or,  it  may  be,  with  the 
one  that  he  happened  to  see  when  a  strong  impulse  urged 
him  to  feed;  and  all  without  a  moment's  hesitation.  The 
human  situation  is  commonly  solved  in  like  manner. 

There  arises  the  ready  and  cogent  objection  that  the  ani- 
mal has  no  consciousness  of  his  acts,  and  accordingly  that 
there  can  be  no  question  of  freedom  when  the  idea  of  choice 
does  not  enter  the  mind.  Freedom  involves  the  power  to 
anticipate  one  course  or  another,  and  the  power  to  repre- 
sent possible  alternatives;  but  in  particular  it  involves  the 
consciousness  of  one's  freedom.  Now  this  is  precisely  the 
human  prerogative;  man  foresees,  mentally  reflects  upon 
his  intention,  has  the  consciousness  of  freedom,  of  the  power 
to  choose  one  course  or  another.  The  consciousness  of  self- 
determination  involves  the  power  to  act,  as  is  preferred, 
in  one  direction  or  in  its  opposite.1  Moreover,  if  in  accord 
with  the  determinist  position  and  the  results  of  physiological 
experiment,  the  mechanical  impulse  to  action  depends  upon 
the  cerebral  intensity  of  the  thought,  then  the  presence  of 
the  ability  to  realize  the  future,  to  have  in  mind  appropriate 
images  and  ideas,  is  adequate  to  establish  the  presence  of 
freedom.  It  becomes  the  power  to  distinguish  between 
right  and  wrong.2 

1  Fonsegrive,  cited  above,  p.  93,  seq.,  p.  113. 

1  The  equivalence  of  the  two  was  assumed  by  the  code  of  1810.  It  ap- 
pears, or  is  suggested  so  long  ago  as  in  the  "Sententise"  of  Peter  Lombard^ 
and  in  the  "Commentaries"  of  Thomas  Aquinas.  See  also  above,  p.  40, 
note  2. 


§  24]  THE  NEO-CLASSIC  SCHOOL  67 

In  this  argument  there  is  at  once  a  subtle  confusion  to 
disentangle  and  a  distinction  to  be  drawn.  Is  freedom  as 
realized  an  intellectual  process?  If  so,  then  the  intensity 
of  the  thought  determines  the  freedom.  This  would  be 
a  deterministic  position,  provided  that  it  be  established 
that  the  will  is  effective  in  the  realm  of  ideas  rather  than 
in  that  of  action.  But  it  is  just  this  that  may  be  questioned. 
May  it  not  be,  on  the  contrary  (approaching  the  thesis 
of  M.  Fouillee  in  his  "Determinism"  and  in  his  "Insistent 
Ideas"),  that  the  knowledge  of  our  freedom  makes  us 
masters  of  our  will,  and  free  agents?  But  this,  in  turn,  is 
but  one  aspect  of  a  psychological  determinism  in  that  it 
makes  freedom  at  once  the  cause  and  the  effect  of  the  idea 
of  freedom.  With  this  reservation  we  turn  to  the  state- 
ment that  freedom  of  the  will  consists  in  the  idea  of  being 
free  ;  it  is  man's  consciousness  of  his  own  freedom.  To 
have  the  consciousness  of  being  a  free  agent  is  all  that  is 
necessary  to  realize  one's  freedom.  This  ideal  aspect  of 
freedom  acts  upon  the  will  as  an  independent  motive,  and 
is  summarized  in  the  expression:  It  is  my  will  because  I 
wish  it  so.  The  thought  of  setting  the  will  to  act  itself  de- 
termines the  will;  and,  likewise,  the  consciousness  of  pos- 
sessing freedom  exempts  us  from  dependence  upon  merely 
instinctive  impulses  or  physiological  forces. 

Approaching  the  question  from  this  direction,  and  ad- 
mitting the  philosophical  validity  thereof  and  admitting 
likewise  that  the  consciousness  which  we  have  of  our  own 
freedom  is  an  effective  force  which  in  a  measure  makes 
real  the  freedom  itself,  does  it  follow,  when  the  question 
is  shifted  to  the  practical  field  of  penal  law  —  which  alone 
is  here  to  be  considered  —  that  every  one  in  relation  to  a 
given  act  has  experienced  such  adequate  consciousness  of 
his  freedom? 


68  INDIVIDUALIZATION  OF  PUNISHMENT       [§  25 

§  25.  Empirical  Conditions  of  Freedom :  Premeditation 

That  every  man  in  a  general  and  abstract  way  feels  him- 
self free  is  a  simple  and  undeniable  fact  of  consciousness; 
but  it  is  far  from  clear  that  in  the  presence  of  a  particular 
situation  this  consciousness  is  aroused  strongly  and  clearly 
enough  and  with  sufficient  vividness  to  induce  reflection  and 
hesitation.  There  are  certain  spontaneous  and  instinctive  situ- 
ations, as  well  as  acts  of  impulse  and  habits  that  take  place 
automatically;  there  are  manifestations  of  the  intimate  self 
that  reach  expression  not  only  without  arousing  a  conscious- 
ness of  the  freedom  to  act  otherwise  but  even  without  the 
thought  of  a  different  action  entering  at  all.  Shall  we  speak 
of  freedom  when  the  idea  of  choice  has  not  been  present,  when 
of  two  possible  issues  only  one  is  inherent  in  our  nature,  and, 
indeed,  is  imposed  upon  it,  without  the  possibility  of  its 
opposite  coming  to  mind?  And  is  not  this  the  case  with  all 
excitable,  intense,  and  sympathetic  natures,  commonly  de- 
scribed as  emotional  but  more  properly  called  passionate? 

The  question  for  the  moment  does  not  concern  those 
inner  conflicts  and  hesitations  that  are  weighed  one  against 
the  other;  such  belong  to  the  state  of  doubt.  There  are 
persons  so  spontaneous  in  action,  so  impulsive  in  feeling, 
with  ready  convictions  on  all  subjects,  that  they  do  not 
experience  such  hesitations.  Indeed,  in  regard  to  acts  per- 
formed instinctively,  in  which  there  is  not  the  least  sug- 
gestion of  a  possibility  of  acting  otherwise,  this  applies  to 
all  of  us.  Let  us  consider  the  hypothesis,  which  is  both 
probable  and  often  realized,  that  there  are  actions  —  and 
this  refers  to  other  than  spontaneous  and  instinctive  acts — 
that  we  have  duly  willed,  which  are  alone  present  to  con- 
sciousness, and  in  which  the  state  of  mind  does  not  entertain 
the  contrary  issue.  This  then  may  be  said  to  have  been  the 


§25]  THE  NEO-CLASSIC  SCHOOL  69 

serious  mistake  of  our  classic  penal  law,  —  the  acceptance 
of  a  premeditated  and  deliberate  act  as  a  distinctively  free 
act,  —  for  thus,  as  affecting  certain  crimes  such  as  murder, 
premeditation  became  in  its  penal  aspect  an  aggravating 
circumstance  of  the  crime.  Premeditation  implied  that  the 
agent  had  prepared,  considered,  reflected,  devised,  and  con- 
firmed the  decision  of  the  will.  Take  the  case  of  a  man 
possessed  by  a  fixed  idea,  who  is  moving  toward  the  type 
of  crime  which  we  call  crimes  of  passion.  The  more 
irresistible,  blind,  absorbing  and  all-pervading  the  obsession 
becomes,  the  more  the  will  becomes  cold,  calculating,  pa- 
tient, and  contemplative.  There  is  nothing  more  calm, 
more  premeditated,  and  more  deliberate  than  the  obsession 
of  suicide  or  than  the  passionate  obsession  of  certain  mur- 
derers, but  at  the  same  time  there  is  nothing  less  free,  if 
we  understand  by  freedom  the  ability  to  withdraw  from 
the  fixed  idea,  —  the  consciousness  of  control  and  of  the  obli- 
gation to  act  otherwise.  Premeditation  is  a  sign  neither 
of  freedom  nor  of  moral  responsibility;  it  is  more  commonly 
a  sign  of  obsession,  or  of  innate  perversion,  and  therefore 
a  sign  of  temperamental  taint.  It  may  also  be  a  symptom 
of  the  formidability  (la  temibilita  in  the  Italian  phrase)  of  the 
individual.  Possibly  the  penal  code  of  1810  anticipated  the 
applications  of  the  Italian  school;  if  so,  it  may  be  credited 
with  having  done  so  unintentionally.  It  is  not  proper  to 
conclude  that  premeditation  is  a  fair  criterion  of  responsibility 
as  based  upon  the  presence  of  freedom.  In  speaking  of 
actions  that  do  not  involve  the  conscious  presence  of  the  idea 
of  freedom  we  should  have  in  mind  premeditated,  possibly 
even  enforced  acts,  and  not  mainly  spontaneous  actions.1 

1  On  the  question  of  premeditation  see  the  excellent  work  of  Alimena, 
"La  Premeditazione,"  especially  the  second  part  relating  to  the  psychology 
of  premeditation,  p.  79  and  p.  116,  seq.  Also  consult  the  thesis  of  M.  Le- 
grand,  "De  la  Premeditation  (Paris,  1898),  p.  35,  seq. 


70  INDIVIDUALIZATION  OF  PUNISHMENT       [§  26 

§  26.  Potential  and  Actual  Freedom :  Applications 

The  conclusion  that  emerges  from  this  discussion  —  that 
freedom  is  a  potential  quality  of  our  nature  —  is  a  con- 
viction capable  of  logical  defense.  The  illusion,  or  better, 
the  indefensible  fiction,  consists  in  supposing  that  such 
freedom  is  realized  in  each  actual  situation  as  a  profound 
and  intimate  motive  force  that  serves  as  an  intermediary 
between  the  will  and  the  external  world.  It  is  undeniable, 
even  for  the  most  normal  and  well-regulated  mind,  that  in 
regard  to  many  actions,  including  crimes,  this  potential 
freedom  (which  is  not  questioned)  does  not  exist  as  a  real 
and  available  motive,  acting  independently  and  contributing 
the  decisive  impulse.  This  of  itself  demonstrates  that  the 
fundamental  assumption  of  our  classic  penal  law  that  every 
willed  act  is  a  free  act,  or,  at  least,  an  act  committed  in  a 
state  of  freedom,  is  false,  artificial,  and  fictitious. 

Turning  to  the  second  assumption  that  serves  as  the 
foundation  of  the  classic  theory,  we  may  examine  the 
position  that,  inasmuch  as  freedom  is  a  spontaneous  force, 
unaffected  by  extraneous  influences,  every  act  involves 
the  same  measure  of  freedom.  Under  this  view  there  is 
no  question  of  greater  or  less  —  one  is  either  free  or  not. 
The  traditional  conception  of  the  freedom  of  the  will  inevi- 
tably reaches  the  surprising  result  that  there  is  no  partial 
freedom,  no  state  of  semi-liberty. 

Considering  freedom  as  something  intelligible,  and  neg- 
lecting the  metaphysical  obscurity  attaching  to  the  con- 
cept, it  can  be  nothing  else  than  the  inherent  ability  to 
resist.  As  applied  to  a  criminal  act,  freedom  is  the  power 
to  resist  the  evil  impulse;  and  this,  in  turn,  is  the  strength 
of  character  that  may  be  appealed  to,  to  oppose  the  inherent 
instincts  and  passions.  If  this  is  true,  how  can  it  be 


§26]  THE  NEO-CLASSIC  SCHOOL  71 

maintained  that  the  power  to  resist  evil  remains  the  same 
for  every  one,  or  for  each  individual  at  all  times  and  for 
all  situations?  To  put  the  question  is  to  answer  it.  It  is 
a  fact  of  consciousness,  a  common  experience,  that  an  act, 
above  the  purely  automatic  and  instinctive  stage,  is  often 
the  issue  of  an  apparent  hesitation,  of  a  choice  implying 
antagonistic  influences  and  at  times  fierce  conflicts.  And 
these  occur  precisely  and  particularly  where  the  conscious- 
ness of  freedom,  and  accordingly  the  sense  of  duty,  is 
actively  present.  There  come  to  consciousness  the  force  of 
impulses  and  the  push  of  instincts,  and  opposed  thereto, 
rational  considerations.  The  conflict  grows,  and  the  im- 
pulses succeed  in  obscuring  the  outlook,  in  suppressing  the 
sense  of  duty  and  the  sense  of  freedom;  and  in  the  end  they 
overcome  the  surviving  power  of  resistance,  dissipate  it 
into  a  vague  and  inert  idea,  and  deprive  it  of  value  as  a 
counteracting  motive. 

This  cumulative  power  of  the  will  depends  upon  many 
familiar  conditions.  It  depends  upon  the  state  of  health  or 
the  presence  of  a  pathological  factor,  quite  apart  from  the 
question  of  true  mental  disorder.  To  use  the  accredited 
expression,  there  may  be  a  real  disorder  of  the  will  involving 
an  almost  physical  incapacity  to  will.  Such  aboulia  is  a 
common  sign  of  neurasthenia.  The  status  of  the  will  de- 
pends upon  habit,  in  short,  upon  character;  and  this  varies 
for  each  individual  and  for  each  of  the  several  possible  as- 
pects of  his  personality.  It  is  unnecessary  to  enlarge  upon 
what  is  established  by  common  experience. 

The  revisers  of  the  penal  code  took  account  of  this  rela- 
tion by  introducing  punishments  variable  between  fixed 
limits,  and  thus  adjusting  the  punishment  to  the  degree  of 
freedom  as  well  as  to  the  objective  status  of  the  act.  For 
like  reason  they  attached  importance  to  premeditation; 


72  INDIVIDUALIZATION  OF  PUNISHMENT       [§  26 

and  in  so  doing,  as  above  noted,  they  committed  a  serious 
error  and  followed  a  false  clue.  To  take  premeditation  as  a 
basis  for  the  individualization  of  punishment  implies  a  belief 
that  the  measure  and  degree  of  intent  embodied  in  an  act 
corresponds  to  the  degree  of  freedom  in  the  act  as  realized. 
This  is  far  from  being  the  case.  It  really  corresponds  to  the 
degree  of  determination  that  induced  the  act.  It  becomes 
an  indication  that  the  act  sprang  from  a  powerful  resolve 
that  had  completely  overpowered  the  agent.  The  deeper, 
the  more  compelling,  the  more  absorbing  the  resolution,  the 
less  it  gives  way  to  other  influences,  the  less  it  yields  to  ad- 
vances from  without,  to  any  external  impressions  from  the 
environment.  As  it  proceeds,  it  grows  by  what  it  feeds  upon 
and  becomes  ever  more  compelling.  It  is,  or  presently  be- 
comes, the  tyranny  of  a  fixed  idea,  and  constitutes  the  very 
reverse  of  a  state  of  freedom.  Nine  times  out  of  ten  the 
more  an  act  is  premeditated  the  less  will  it  be  free.  If  the 
degree  of  punishment  is  to  be  based  upon  the  measure  of 
freedom,  then  premeditation  is  the  worst  of  criteria.  But 
whether  or  not  it  is  a  fitting  criterion,  it  is  significant 
of  a  certain  tendency.  It  proves  that  the  supposition  of 
a  like  measure  of  freedom  for  every  identical  act,  and 
consequently  the  supposition  of  a  like  responsibility,  is 
quite  untenable. 

The  view  that  seems  likely  to  prevail  substitutes  a  reality 
for  a  fiction;  and  inasmuch  as  it  must  deal  with  responsi- 
bility and  hold  to  some  belief  in  freedom,  it  builds  upon  a 
true  responsibility  in  place  of  an  assumed  responsibility.  It 
aims  to  substitute  the  realities  of  experience  for  purely 
judicial  abstractions;  to  give  fact  a  place  above  law,  the 
spirit  of  observation  a  place  above  the  legal  spirit.  We  may 
now  proceed  to  the  results  developed  from  these  commendable 
purposes. 


§27]  THE  NEO-CLASSIC  SCHOOL  73 

§  27.   The  Social  Regulation  of  Conduct 

But  before  presenting  them  it  may  be  well  to  set  in  relief 
the  contrast  of  the  two  systems.  The  penal  code  of  1810 
may  be  said  to  have  been  a  legal  construction  in  the  extreme 
sense  of  the  word;  it  was  the  work  of  jurists.  The  chief 
characteristic  of  legal  constructions  is  the  prominence  of 
straight  lines,  of  abstract  regulations,  and,  consequently,  of 
fictions  and  formulae  to  which  living  realities  are  forcibly 
made  to  conform. 

The  law  is  primarily  a  social  discipline  and  the  foundation 
of  the  social  order.  Now  social  regulation  requires  the  for- 
mulation of  certain  general  limitations  to  which  individuals 
must  submit.  From  this  assumption  it  necessarily  follows 
that  every  regulation  made  for  a  group  of  similar  cases  must 
be  strictly  applicable  to  each  of  the  cases  in  detail.  This, 
however,  is  but  an  assumption,  though  a  necessary  one  to 
introduce  some  measure  of  order  and  uniformity  in  the  con- 
trol of  individual  freedom.  It  is  an  assumption  of  the  same 
kind  as  obtains  in  politics  and  in  constitutional  matters;  as- 
the  right  to  liberty,  the  right  to  equality,  and  such  other 
rights  as  the  principles  of  written  constitutions  provide. 
These  can  be  applied  to  particular  cases  only  by  way  of  legal 
fictions;  which  means  that  commonly  the  application  is 
most  imperfect.  The  classic  penal  law,  following  the  spirit 
of  social  regulation,  was  a  legal  construction  based  wholly 
upon  assumptions  and  fictions. 

It  is,  however,  the  case  that  penal  law  is  of  all  social  sciences 
the  least  amenable  to  a  system  of  fictions  and  assumptions. 
Any  such  system  opposes  the  living  realities  which  protest 
against  the  rigidity  of  formulae  and  against  their  imperfect 
adjustability  to  the  facts;  or  rather,  against  the  difficulty 
of  shaping  the  formulae  to  the  requirements  of  individual 


74  INDIVIDUALIZATION  OF  PUNISHMENT       [§27 

justice.  The  same  is  doubtless  more  or  less  true  of  other 
departments  of  the  law.  Yet  elsewhere  the  system  of  legal 
assumption  readily  yields  in  special  cases  to  slight  personal 
concessions,  which  it  accepts  in  the  interests  of  order  and 
the  social  welfare.  It  is  the  cost  of  the  social  protection, 
indeed,  of  efficient  regulation;  and  such  regulation  is  accepted 
as  a  necessary  limitation  to  which  all  must  submit. 

Penology  no  longer  concerns  itself  with  enforcing  payment 
for  social  protection.  The  question  as  it  affects  the  individ- 
ual is  very  different  and  vital,  —  that  of  determining  whether 
he  shall  continue  to  participate  in  the  social  life;  whether  he 
shall  remain  in  the  class  of  active  free  citizens,  enjoying 
social  rights  under  the  protection  of  the  State;  or  whether 
he  shall  be  permanently  or  temporarily  debarred  from  social 
privilege.  The  issue  concerns  not  an  incidental  disability 
justified  by  the  interests  of  society,  but  the  very  right  to  a 
share  in  the  social  life.  The  issue  appears  as  the  choice  of 
one  of  three  possibilities,  singly  or  in  combination.  There 
may  be  a  deprivation  of  life,  of  liberty,  of  honor.  Such  a 
serious  deprivation  cannot  be  demanded  in  obedience  to  a 
mere  assumption,  cannot  be  imposed  by  virtue  of  a  legal 
fiction.  If  such  punishment  is  based  upon  the  conception 
of  responsibility,  it  cannot  be  applied  upon  a  mere  assump- 
tion of  responsibility;  there  must  be  a  concrete  and  definite 
proof  thereof.  Accordingly,  the  personal  issues  involved  in 
a  criminal  case  differ  wholly  from  the  forfeitures  or  sacrifices 
at  stake  in  other  types  of  legal  issues. 

The  system  of  assumptions  and  fictions  should  long  ago 
have  been  recognized  as  untenable.  It  is  time  to  replace  it 
by  a  concrete  examination  of  the  facts  of  the  case.  The 
penal  code  of  1810  was  based  upon  a  system  of  assumed 
responsibility.  The  criminal  practice  that  is  to  be  substi- 
tuted for  this  legal  theory  looks  to  a  system  of  true  re- 


§28]  THE  NEO-CLASSIC  SCHOOL  75 

sponsibility,  —  a  responsibility  that  shall  be  concretely  and 
individually  applied,  with  due  reference  to  the  personality  of 
the  offender  and  the  details  of  the  case.  It  is  to  replace  a 
general  fictitious  and  abstract  responsibility,  assumed  for 
one  and  all  by  the  warrant  of  the  same  legal  formula.  The 
contrast  between  the  two  systems  is  pronounced :  in  the  writ- 
ten law,  responsibility  is  assumed  and  fictitious;  in  the  law 
as  applied,  it  is  real  and  concrete. 

§  28.  Responsibility  proportioned  to  the  Degree  of  Freedom ; 
Irresponsibility  and  its  Establishment 

Let  us  now  turn  to  the  formulated  conclusions.  They  ap- 
peared as  a  first  attempt  towards  the  individualization  of 
punishment  based  upon  the  degree  of  responsibility.  The 
responsibility,  in  turn,  was  based  upon  the  conception  of 
freedom;  justice  required  that  the  punishment _should  be 
proportioned  to  the  degree  of  freedom;  and,  finally,  justice 
required  that  the  punishment  should  be  entirely  omitted 
where  there  was  no  freedom  of  action.  Such  is  the  logical 
and  just  position  of  the  neo-classic  school.  The  first  appli- 
cation thereof  was  made  by  the  jury.  The  latter  naturally 
would  not  submit  to  the  subtleties  of  legal  assumptions. 
They  might  be  informed  that  every  man  accused  of  the  same 
crime  had  a  like  responsibility  and  consequently  should  be 
given  a  like  punishment.  But  they  were  brought  face  to 
face  with  the  defendant  as  he  disclosed  the  details  of  his  life, 
the  impulses  to  which  he  was  subject,  the  delusions  that 
distorted  his  outlook;  and  the  jury  recognized  that,  quite 
apart  from  the  question  of  insanity,  there  may  be  degrees 
of  freedom,  and  consequently  degrees  of  responsibility.  But 
having  no  power  to  grade  the  responsibility,  since  the  law 
made  no  such  provision,  they  simply  found  for  acquittal. 
In  1824  with  some  limitations,  and  in  1832  in  a  more  gen- 


76  INDIVIDUALIZATION  OF  PUNISHMENT       [§28 

eral  provision,  there  was  introduced  a  concession  to  this 
tendency  of  juries  to  recognize  extenuating  circumstances. 
The  term  indicates  the  purpose  in  mind.  It  was  not  to  ad- 
just the  punishment  to  the  degree  of  perversion  of  the  indi- 
vidual, but  to  the  degree  of  responsibility;  that  is,  to  the 
precise  moral  status  of  the  act  in  question.  It  was  an  in- 
dividualization  based  upon  and  measured  by  responsibility. 

The  penal  code  considered  in  the  first  instance  the  case  of 
minors.  It  made  the  distinction  as  an  individual  one  and 
not  as  the  result  of  a  presumption.  The  exemption  of  minors 
was  not  in  deference  to  a  period  of  presumed  irresponsibility 
in  regard  to  crime,  but  to  a  legal  incapacity  to  commit  crime, 
as  the  phrase  goes.  Any  minor  of  whatever  age,  even  a  young 
child,  may  be  liable  to  criminal  prosecution.  But  the  ques- 
tion of  the  presence  of  normal  discretion  must  be  raised,  and 
thereby  the  question  of  responsibility  becomes  an  individual 
one.  Modern  practice  proposes  to  introduce  and  apply  an 
analogous  procedure  in  regard  to  adults. 

In  the  introduction  of  extenuating  circumstances  the  law 
entered  upon  a  new  and  approved  path.  Recent  legislation 
endorses  the  position  of  the  neo-classic  school.  It  is  not 
merely  that  modern  codes  assign  a  large  place  to  extenuating 
circumstances,  but  that  recent  tendencies  as  exhibited  in 
foreign  criminal  legislation  of  a  later  period  than  the  French 
have  introduced  conceptions  ignored  by  the  older  penal 
codes. 

The  first  of  the  important  innovations  affects  the  status  of 
responsibility.  The  French  penal  code  assumed  that  in 
every  adult  man  of  sound  mind  and  normal  condition  re- 
sponsibility was  the  rule.  It  was  assumed  to  be  present  hi 
every  voluntary  act.  To  this  general  assumption  the  only 
exception  was  made  in  behalf  of  a  condition  of  mental  dis- 
order, clearly  defined,  incompatible  with  normality  and 


§28]  THE  NEO-CLASSIC  SCHOOL  77 

leaving  no  doubt  of  the  subject's  irresponsibility.  Accord- 
ingly the  French  penal  code  admitted  no  irresponsibility 
apart  from  true  dementia;  and  likewise,  although  this  is  not 
definitely  stated,  apart  from  such  pathological  conditions  as 
idiocy  or  similar  mental  defects.  So  long  as  insanity  was 
not  present,  the  defendant  could  not  plead  irresponsibility. 
As  a  point  of  law  the  plea  was  not  admitted  that  the  de- 
fendant, while  in  possession  of  his  intellectual  faculties,  had 
not  the  exercise  of  his  free  will,  or  that  he  did  not  possess 
sufficient  freedom  to  resist  the  crime.  The  assumption  of 
responsibility  was  suspended  only  in  the  presence  of  a  proof 
of  a  pathological  condition  of  irresponsibility.  One  assump- 
tion was  substituted  for  another;  and  the  second,  like  the 
first,  was  determined  by  a  pathological  test.  The  point  at 
issue  was  not  to  be  determined  by  a  psychological  opinion 
but  by  expert  medical  testimony;  it  was  a  question  of  the 
evidence  of  a  pathological  mental  defect  or  a  state  of  clearly 
marked  insanity  medically  attested.  Given  such  a  condi- 
dition,  the  assumption  of  irresponsibility  necessarily  fol- 
lowed. Inasmuch  as  a  state  of  abnormality  had  replaced  the 
normal  condition,  the  one  assumption  had  to  give  way  to 
the  other.  From  these  clear,  definite,  simple,  and  direct 
premises  the  following  conclusions  result:  every  man  not  in- 
sane is  responsible;  to  establish  irresponsibility  insanity  must 
be  proven;  there  is  no  middle  ground,  no  intermediate  condi- 
tion. For  the  French  penal  code  responsibility  and  irre- 
sponsibility are  alike  states  of  mind  or,  if  one  may  say  so, 
potential  states  of  mind.  When  the  pathological  condition 
is  once  established  it  determines  the  psychological  status. 
There  is  no  need  of  determining  it  in  its  bearing  upon  every 
special  act. 

The    neo-classic    school    and    the    legislation    associated 
therewith   abandoned   any   such   simple   and   legally   exact 


78  INDIVIDUALIZATION  OF  PUNISHMENT       [§  28 

system.  They  made  irresponsibility  dependent  not  alone  on 
the  evidence  of  a  state  of  dementia  but  upon  the  evidence  of 
a  lack  of  freedom.  The  proof  of  an  antecedent  pathological 
state  is  in  itself  not  sufficient.  It  is  but  the  preliminary  re- 
quirement to  warrant  an  examination  and  a  psychological 
inquiry.1  Some  of  the  resulting  legislative  proposals  logi- 
cally, if  radically,  contended  for  a  psychological  criterion 
alone,  requiring  unconditionally  the  evidence  of  a  lack  of 
moral  freedom.  The  consequences  of  this  position  were 
disastrous.  It  permitted  the  accused  in  all  cases  to  plead 
irresponsibility.  There  were  indeed  few  cases  of  crime  in 
which  the  defendant  could  not  allege  a  moment  of  distrac- 
tion depriving  him  of  true  freedom  of  action.  To  remedy 
this  defect  a  twofold  or  composite  criterion  was  introduced; 
the  further  evidence  of  a  pathological  state  was  required  to 
permit  the  plea  of  the  absence  of  moral  freedom.  But  it  is 
self-evident  that  the  pathological  criterion  is  not  considered 
sufficient  in  itself  to  establish  irresponsibility,  unless,  as  in 
true  dementia,  the  case  unmistakably  involves  a  condition 
that  eliminates  responsibility.  But  would  a  simple  brain 
disorder,  provided  that  it  was  present  before  and  not  merely 
during  the  crime,  be  sufficient  to  establish  irresponsibility? 
Would  it  be  easy  to  decide?  Obviously  the  presence  to  any 
degree  of  a  pathological  disturbance  however  slight,  and 
yet  more  obviously,  of  any  neurosis  not  to  say  nervousness, 
should  warrant  the  privilege  of  an  investigation  and  the 
possibility  of  establishing  the  absence  of  freedom.  But  in 
actual  practice  this  composite  principle,  despite  the  assur- 
ances which  it  seems  to  offer,  amounts  to  a  dependence  upon 

1  See  the  scholarly  work  of  Gretener  on  the  Preliminary  Draft  for  the 
Swiss  Penal  Code;  Gretener,  "Die  Zurechnungsfahigkeit  als  Gesetzgebungs- 
frage"  (Berlin,  1897),  §  2,  p.  17,  aeq.  As  germane  to  Gretener's  treatment, 
and  to  offset  the  partisanship  which  it  expresses,  it  will  be  well  to  read  the 
review  published  by  Zurcher  in  the  Revue  penole  suiase  (1898),  p.  51. 


§29]  THE  NEC-CLASSIC  SCHOOL  79 

a  psychological  proof  with  the  abuses  and  dangers  attaching 
thereto.  The  physician  is  really  appealed  to  for  an  opinion 
not  upon  the  existence  of  a  mental  disorder,  which  is  his 
proper  field,  but  upon  a  psychological  question,  —  the  com- 
patibility of  the  abnormal  condition  with  the  presence  or 
the  degree  of  legal  responsibility.  Or  again,  take  the  com- 
mon case  in  which  the  physician  renders  an  opinion  upon 
the  question  of  responsibility.  The  judge  invested  with 
superior  authority,  may  in  turn  review  the  opinion  of  the 
physician.  He  may  thus  revise  and  determine  upon  other 
considerations  what  is  fundamentally  a  psychological  issue, 
depending,  however,  upon  a  state  of  abnormality.  Hence 
there  results  general  confusion  of  their  respective  functions. 

§  29.  The  Basis  of  Mitigation  and  of  Exemption  from 
Punishment 

But  what  other  procedure  is  available?  The  question 
may  be  consistently  answered.  If  responsibility  is  based 
upon  freedom,  it  should  necessarily  end  where  freedom  of 
the  will  ends.  Every  defendant  should  have  the  right  to 
establish  that  the  deed  of  which  he  is  accused  was  not  a  free 
act.  Unquestionably  the  absence  of  free  will  may  be  proven 
apart  from  the  existence  of  true  insanity.  Hence  a  con- 
cession allowed  by  many  modern  legislatures  is  the  admis- 
sion that  the  establishment  of  irresponsibility  is  an  evidence 
of  a  lack  of  free  will,  and  that  such  evidence  is  possible  apart 
from  cases  of  true  insanity.  In  dealing  with  this  problem 
modern  legislation  was  called  upon  to  take  a  position  upon 
the  metaphysical  question  of  free  will. 

On  this  issue  the  French  penal  code  reaches  a  remarkable 
conclusion.  It  assumes  free  will  but  does  not  mention  it; 
it  assumes  that  every  adult  is  responsible  for  his  actions. 
To  suspend  this  assumption  requires  the  evidence  of  de- 


80  INDIVTOUALIZATION  OF  PUNISHMENT        [§29 

mentia  or  of  a  similar  pathological  condition.  The  word 
"  freedom  "  is  not  mentioned.  The  evidence  to  be  furnished 
relates  to  matters  of  medical  diagnosis  that  involve  no  philo- 
sophical or  religious  convictions.  So  far  the  position  is  clear. 
The  medico-legal  expert  has  to  pronounce  solely  upon  the 
presence  or  absence  of  insanity.  This  lies  within  his  com- 
petence. He  is  not  called  upon  to  pronounce  upon  the  free- 
dom of  the  will;  and  if  he  does  not  believe  in  free  will,  no 
sacrifice  of  his  conviction  is  involved. 

The  question  of  moral  freedom  is  raised  in  the  German 
penal  code,  hi  the  laws  of  the  majority  of  the  Swiss  cantons, 
in  the  draft  of  the  Austrian  penal  code,  and  in  the  Italian 
penal  code.  To  prove  irresponsibility  requires  the  estab- 
lishment of  the  absence  of  freedom.  The  evidence  bears 
directly  upon  a  psychological  question;  and  the  medico- 
legal  expert,  summoned  to  pronounce  upon  the  mental  state 
of  the  defendant,  finds  himself,  in  fact,  called  upon  to  solve 
a  question  in  moral  psychology  and  to  decide  a  philosophical 
issue.  If  he  does  not  believe  in  the  freedom  of  the  will,  may 
he  not  be  tempted  to  decide  against  responsibility?  Follow- 
ing upon  the  opinion  of  the  physician,  the  same  problem  is 
put  to  the  judge  or  to  the  jury;  namely,  the  general  problem 
of  the  existence  of  free  will  and  of  its  special  application  to 
the  case  hi  question.  Under  these  circumstances  the  in- 
consistency of  the  verdicts  of  juries  is  not  surprising. 

However,  such  is  the  result  of  the  new  position.  The  legal 
evidence  no  longer  turns  upon  a  medical  diagnosis,  —  a 
relatively  simple  matter  to  be  established  by  medical  evi- 
dence; but  it  turns  upon  a  question  of  moral  psychology. 
It  presupposes  a  metaphysical  problem,  —  the  question  of 
determining  whether  the  particular  act  was  executed  in  a 
condition  of  moral  freedom.  The  second  result  of  the  neo- 
classic  doctrine  is  the  legislative  sanction  of  individualization 


§29]  THE  NEO-CLASSIC  SCHOOL  81 

based  upon  the  degree  of  responsibility.  This  is  termed  the 
theory  of  partial  or  limited  responsibility.  In  view  of  the 
treatment  of  the  problem  in  a  later  connection,  it  is  sufficient 
to  give  a  brief  summary  thereof.1 

If  there  are  degrees  of  responsibility  it  follows  that  the 
punishment  should  vary  with  the  degrees  of  this  subjective 
factor.  If  the  power  to  resist  evil  fluctuates  with  the  psy- 
chological condition  of  the  individual,  and  particularly  with 
that  of  the  brain  and  the  general  health,  the  punishment 
should  reflect  the  precise  status  of  this  subjective  condition; 
the  measure  of  punishment  should  be  regulated  according 
to  the  degree  of  responsibility.  The  principle  is  clear.  The 
French  system  relies  upon  the  very  considerable  elasticity 
of  practice  which  the  recognition  of  extenuating  circum- 
stances permits.  A  more  developed  view,  more  considerate 
of  fine  distinctions,  points  out  that  the  extenuating  circum- 
stances cannot  be  anticipated  in  the  law,  and  must  be  left 
entirely  to  the  discretion  of  the  judge.  They  refer  directly 
to  the  incidental  circumstances  of  the  crime;  to  whatever  con- 
tributed to  the  issue, — the  nature  of  the  act,  its  motive,  and 
the  occasion  which  provoked  it  and  possibly  justified  it.  All 
these  circumstances  are  variable  and  cannot  be  anticipated; 
they  have  no  reference  to  previously  existing  or  acquired 
traits. 

At  this  point  a  further  distinction  enters.  There  are  states 
of  the  mind  or  brain  or  health  that  are  not  accidents  of  con- 
dition and  should  not  be  confused  with  them.  Indeed,  they 
are  permanent  conditions  and  in  themselves  restrict  and 
lower  the  energy  of  the  will  and  thereby  its  power  to  resist 
evil,  without  completely  suppressing  it.  Such  are  the  vari- 

1  See  the  study  of  M.  Sumien,  "Essai  sur  la  thSorie  de  la  responsabilite 
att£nuee  de  certains  criminels,"  in  the  Revue  critique  de  legislation  et  de  juris- 
prudence, 1897,  p.  451,  seq. 


82  INDIVIDUALIZATION  OF  PUNISHMENT       [§  29 

ous  forms  of  neurasthenia,  degenerative  taint,  or  cerebral 
excitement  bordering  upon  monomania  in  the  medical  sense 
of  the  word.  All  such  conditions  lower,  in  some  measure, 
the  capacity  to  act  as  a  free  and  responsible  agent.  They 
weaken,  in  some  measure,  the  legal  assumption  of  responsi- 
bility. Accordingly  the  law  can  and  should  recognize  them 
as  grounds  for  a  legal  reduction  of  punishment.  Just  as  ir- 
responsibility is  a  legal  ground  for  exemption  from  punish- 
ment, so  should  semi-responsibility  be  a  legal  ground  for 
concession;  it  should  not  be  merged  with  the  indefinite  group 
of  extenuating  circumstances.  It  is  a  special  condition  which 
the  law  can  and  should  recognize.  It  should  not  be  con- 
fused with  the  objective  extenuating  circumstances;  indeed, 
it  may  occur  along  with  them.  The  abnormal  condition 
may  so  combine  with  the  circumstances  of  the  crime  as  to 
become  a  partial  provocation,  which  in  itself  reduces  the 
objective  gravity  of  the  offense.  As  a  part  of  the  variable 
conditions  it  should  be  considered  along  with  the  extenuating 
circumstances.  But  before  applying  this  ground  of  exten- 
uation there  should  in  justice  be  considered  a  more  funda- 
mental factor;  namely,  the  condition  of  the  will,  the  state  of 
the  defendant's  mind.  He  may  in  that  case  present  two 
cumulative  grounds  for  indulgence;  consequently,  he  may 
be  entitled  to  two  degrees  of  extenuation,  the  one  superim- 
posed upon  the  other.  To  admit  but  one,  as  is  the  rule  in 
France,  is  decidedly  unjust. 

Accordingly,  in  recent  legislations  these  different  types  of 
partial  responsibility  are  recognized  as  grounds  of  mitiga- 
tion by  the  law,  apart  from  the  extenuating  circumstances. 
In  practice,  as  already  noted,  this  amounts  to  conceding 
to  the  jury  the  right  to  apply  two  successive  grounds  for 
the  mitigation  of  the  punishment:  the  one  by  reason  of  the 
partial  responsibility  of  the  criminal,  and  the  other,  if  the 


§30]  THE  NEO-CLASSIC  SCHOOL  83 

jury  so  finds,  by  reason  of  the  extenuating  circumstances. 
Thus  the  punishment  might  be  reduced  to  nothing;  and  the 
question  arises  whether  it  would  not  be  better  to  omit  the 
punishment  in  the  first  place.  A  defect  in  our  punitive  sys- 
tem is  the  abuse  of  short  sentences.  Punishment  should  be 
long  enough  to  act  as  a  reformative  measure;  otherwise  the 
complete  remission  of  punishment  is  preferable.  Short  sen- 
tences are  long  enough  to  degrade  and  contaminate,  but 
not  long  enough  to  offset  the  moral  evil  which  the  prison 
breeds.  The  modern  view  regards  the  criminal  as  even 
more  of  a  menace  than  the  man  suffering  from  disease  or 
from  tendencies  to  insanity.  It  would  appear  that  the 
more  dangerous  he  is,  the  more  promptly  is  he  restored  to 
society.1  And  yet  this  result  seems  to  follow  from  an  in- 
dividualization  based  upon  responsibility. 

§  30.  The  Individnalization  thus  resulting ;  Practical  and 
Theoretical  Objections 

The  consequences  of  the  new  conception  of  responsibility 
are  clear.  If  you  start  from  the  concrete  question  of  the 
freedom  of  the  will  and  determine  to  what  degree  a  criminal 
act  has  been  committed  in  full  freedom,  you  necessarily 
reach  two  conclusions:  the  first,  to  exempt  from  punishment 
when  it  is  established  pathologically  or  psychologically  that 
freedom  of  the  will  was  absent;  and  the  second,  to  reduce 
and  lower  the  punishment  when  it  is  established  that  the 
defendant  exercised  only  a  partial  freedom.  Though  these 
positions  are  ignored  by  the  French  penal  code  they  have 
been  more  or  less  completely  recognized  in  modern  legis- 

1  See  the  report  of  Professor  D.  von  Speyr  at  the  Swiss  Congress  of  Medical 
Alienists  at  Coire,  in  1893:  "Wie  ist  die  Zurechnungsfahigkeit  in  einem 
schweizerischen  Strafgesetzbuche  zu  bestimmen?"  published  in  the  Revue 
penale  suisse,  1894,  p.  183,  seq.;  and  also  Liszt  in  the  Zeitsch.f.  d.  ges.  Str.  W.t 
Vol.  XVII,  p.  77,  seq. 


84  INDIVIDUALIZATION  OF  PUNISHMENT       [§  30 

lation.  Such  recognition  has  been  generally  regarded  as  an 
advance  in  consistency  as  well  as  in  justice. 

The  new  system  may  very  properly  be  termed  the  neo- 
classic  system.  It  appears  at  once  as  a  result  and  as  an 
application  of  the  earlier  classic  theories,  and  again  as  a 
reaction  against  the  unyielding  rigidity  of  the  classic  view. 
It  appears  as  a  natural  logical  development,  because,  if  re- 
sponsibility is  based  upon  freedom,  it  seems  absolutely  just 
to  gauge  the  responsibility  for  an  action  by  the  degree  of 
freedom  exercised  by  the  one  who  committed  it.  But  this 
is  a  violent  reaction  from  the  original  severity  of  the  penal 
code;  for  there  it  was  assumed  that  freedom  remained  ever 
the  same,  and  required  approximately  the  same  punish- 
ment for  all  who  committed  the  same  crime.  It  is  against 
this  fiction  that  the  neo-classic  school  protested;  and  it 
should  be  given  the  credit  for  this  first  attempt  scientifically 
to  apply  the  subjective  position  to  criminology.  The^  neo- 
classic  position  is  avowedly  subjective,  advocating  the  con- 
sideration of  the  individual,  taking  account  of  the  state  of 
the  will  at  the  moment  of  the  crime,  and  estimating  the 
degree  of  the  culpability  of  the  offender.  It  marks  the  re- 
cent introduction  of  the  subjective  point  of  view  in  penology. 
To  find  an  equally  liberal  humanitarian  justice  and  one 
equally  solicitous  of  moral  values,  we  would  have  to  go  back 
to  the  ecclesiastical  law.  We  are  withdrawing  from  a  justice 
of  conformity  to  the  letter  of  the  law  to  return  to  a  justice 
of  discipline,  less  controlled  by  legal  formulae  and  more 
considerate  of  the  individual.  The  crime  no  longer  stands 
alone;  the  criminal  becomes  the  chief  consideration. 

However,  this  first  attempt  in  subjective  criminology  will 
be  found  quite  inadequate.  It  is  open  to  two  serious 
criticisms  in  that  it  involves  a  practical  difficulty  and  a 
scientific  error. 


§  30]  THE  NEO-CLASSIC  SCHOOL  85 

The  practical  difficulty  is  obvious; l  it  is  the  absence  of  a 
criterion  to  determine  the  degree  of  freedom.  Every  one, 
even  the  extreme  upholders  of  the  freedom  of  the  will  in  its 
traditional  form,  recognizes  that  freedom  is  not  the  same  as  the 
will.  An  act  of  volition  is  different  from  an  act  of  free  election. 
The  will  is  a  mechanical  expression  of  the  moral  nature  shared 
by  all  who  reason  and  act;  it  exists  in  the  insane  as  in  the  rest 
of  mankind.  The  insane. man  exercises  a  will,  and  a  reasonable 
one.  He  desires  and  he  reasons.  What  he  lacks  is  fundamental; 
he  objectifies  his  ideas  and  builds  his  reasonings  and  desires 
upon  a  foundation  devoid  of  reality.  But  apart  from  this  his 
mental  mechanism  functions  as  in  any  one  else.  His  acts  of  will 
are  activities  similar  to  those  carried  out  by  others;  and  yet  he 
is  not  regarded  as  free.  Freedom  is  not  the  same  as  will.  The 
mistake  consists  in  believing  that  it  is  possible  to  determine 
and  measure  the  will.  But  if  freedom  is  to  be  distinguished 
from  will,  how  shall  we  find  a  general  standard  of  freedom? 

Freedom  is  not  open  to  scientific  demonstration  and  proof. 
How  then  shall  it  be  graded,  even  approximately?  We  may 
possibly  measure  the  degree  of  intelligence  and  the  strength 
of  the  will;  but  this  is  not  freedom.  Science  and  observation 
discover  only  causes  and  effects;  but  the  freedom  of  the  will 
consists  in  breaking  away  from  the  principle  of  causality. 
It  is  a  force  produced  apart  from  the  field  of  experience. 
This  does  not  imply  that  it  has  no  existence.  The  findings 
and  methods  of  science  set  forth  that  science  cannot  de- 
termine, or  discover,  or  observe  freedom;  it  escapes  every 
device  of  scientific  analysis.  Accordingly,  the  jury  in  its 
practical  function  of  gauging  this  question  of  freedom  and 
responsibility  has  no  other  resource  than  to  follow  the  ex- 
ample7 of  the  law;  it  holds  to  the  criterion  of  premeditation, 

1  See  the  very  interesting  chapter  in  "La  question  de  la  liberte  et  la  con- 
duite  humaine,"  by  M.  Paul  Moriaud  (Paris,  F.  Alcan,  1897),  p.  185,  seq. 


86  INDIVIDUALIZATION  OF  PUNISHMENT       [§30 

and  quite  generally  confuses  premeditation  with  freedom. 
Far  from  being  the  same,  the  two  are  commonly  opposed. 

Yet  the  argument  likely  to  carry  conviction  is  this : 1  if 
freedom  is  the  power  to  resist  evil  and  the  ability  to  act  by 
virtue  of  such  resistive  power,  it  follows  that  the  more  a  man 
is  perverted  and  corrupt  the  less  is  he  free  and  accountable. 
If  the  degree  of  freedom  is  to  be  measured  by  the  power  to 
resist  evil,  then  the  criterion  can  be  applied  only  to  the 
crimes  of  first  offenders,  for  they  alone  show  the  necessary 
hesitations  and  conflicts.  In  such  cases  it  is  evident  that  the 
agent  could  really  have  resisted.  Thus  the  man  convicted 
for  the  first  time  becomes  the  really  responsible  criminal. 
If  punishment  is  to  be  gauged  by  the  degree  of  freedom,  he 
is  the  one  to  be  punished  mercilessly;  for  commonly,  except 
under  stress  of  passion,  his  crime  will  appear  as  a  free  act. 

Is  it  to  be  supposed,  when  the  hardened  and  habitual 
criminal  is  bent  upon  theft  or  even  murder,  that  any 
thought  of  the  moral  significance  of  his  crime  enters  his 
mind?  The  power  to  resist  implies  the  thought  of  re- 
sistance. But  the  thought  of  such  resistance  is  not  even 
present.  It  has  been  deadened  by  habit  and  lost  in  the 
growing  degeneracy  of  the  man.  The  more  perverted  and 
hardened  a  man  becomes,  the  less  is  any  freedom  of  action 
perceptible  in  what  he  does;  and  hence  he  becomes  less 
and  less  free  and  accountable.  Accordingly  he  should  be 
exempt  from  punishment,  if  the  test  of  real  and  concrete 
freedom,  the  test  of  the  actual  proof  of  a  free  will,  is  to  be 
accepted.  It  is  in  his  behalf  that  parole,  according  to  the 
law  of  Berenger,  was  provided.  If,  however,  this  reasoning 
offends  common-sense,  one  may  withdraw  from  the  position 
that  punishment  should  be  inflicted  because  of  a  respon- 

1  Wahlberg,  "Grundztlge  der  Strafrechtlichen  Zurechnungslehre "  (in  the 
Gesammeltc  kleinere  Schriften,  Vol.  I,  p.  1,  especially  pp.  88,  85). 


§31]  THE  NEO-CLASSIC  SCHOOL  87 

sible  state,  and  uphold  punishment  for  the  reason  of  the 
criminal's  menace  to  society.  Under  this  view  it  is  not  a 
punishment  that  is  applied  but  a  precautionary  measure. 
This  brings  one  back  to  Liszt's  view  that  such  criminals 
are  in  his  sense  no  longer  responsible.  As  a  rigid  deter- 
minist  Liszt  regards  the  conception  of  responsibility  as 
distinct  from  the  conception  of  moral  freedom;  and  he 
is  thus  led  to  deny  that  such  incorrigible  offenders  exercise 
responsibility,  and  to  ask  in  their  behalf  precautionary 
measures  which  are  not  in  accord  with  the  classic  conception 
of  punishment.  Yet  this  is  the  modern  position,  and  ap- 
pears as  well  in  Stooss,  who,  however,  does  not  abandon 
the  classic  conception  of  responsibility.  He  finds  it  ob- 
jectionable to  speak  of  punishment  for  those  who  have 
become  insensitive  to  punishment.  He  regards  such  men 
as  he  regards  minors,  though  in  a  very  different  sense,  as 
exempt  from  punishment.1  Responsibility  is  no  longer 
identified  with  a  liability  to  a  criminal  charge.  But  this 
conclusion  is  based  upon  the  modern  conception  of  indi- 
vidualization  considered  in  terms  other  than  those  of  re- 
sponsibility. This  solution  the  neo-classic  school  cannot 
consistently  accept  in  view  of  its  recognition  of  responsi- 
bility as  universally  present,  and  of  its  acceptance  as  the 
sole  factor  in  the  determination  of  punishment.  It  should 
thus  agree  with  Liszt  that  professional  criminals  are  ir- 
responsible, but  should  add  that  therefore  society  has  no 
occasion  to  take  vengeance  on  them. 

§  31.  Remote  and  Immediate  Responsibility 
If  we  may  still  speak  of  freedom  of  the  will  and  responsi- 
bility in  connection  with  such  debased  individuals,  it  is  not 

1  See  the  lecture  of  Stooss  at  the  opening  of  his  course  on  penal  law  at  the 
University  of  Vienna:  "Der  Geist  der  modernen  Strafgesetzgebung."  in  the 
Revue  penale  suisse,  1896,  p.  269,  seq. 


88  INDIVIDUALIZATION  OF  PUNISHMENT        [§31 

at  the  moment  of  committing  the  crime  that  they  apply; 
that  is  the  very  moment  when  there  is  no  freedom.  One 
must  go  far  into  the  past  to  find  the  precise  moment,  the 
very  instant  perhaps,  when  the  sense  of  wrong-doing  was 
present  to  their  conscience  and  when  they  passed  beyond 
its  influence,  crossing  for  all  time  the  fatal  boundary  and 
entering  upon  the  path  of  what  is  now  called  chronic  crim- 
inality. At  certain  solemn,  possibly  infrequent  moments  of 
our  existence,  we  certainly  have  the  consciousness  of  com- 
mitting ourselves  and  our  moral  future,  a  consciousness  of 
a  critical  period,  at  which  it  lies  with  us  to  set  our  course 
in  a  definite  direction.  We  are  conscious  of  a  freely  acting 
power,  though  doubtless  the  decision  is  reached  through 
some  motive  which  itself  creates  the  decisive  resolve,  or 
at  least  gives  it  the  headway  that  determines  its  dominance 
and  so  impresses  the  cerebral  equilibrium  as  to  result  in  the 
action  taken.  Possibly  many  criminals  have  had  such 
moments.1  But  how  shall  it  be  possible  always  to  find 
such  a  precise  moment  in  the  turn  of  affairs,  and,  if  found, 
how  shall  it  serve  to  determine  the  proper  measure  of  pun- 
ishment? The  punishment  warranted  by  law,  which  alone 
the  judge  has  the  right  to  impose,  is  that  which  the  law 
provides  for  the  crime,  and  which,  accordingly,  relates  only 
to  the  crime  committed.  It  has  no  relation  whatever  to 
that  remote  situation  when  the  irrevocable  decision  was 
taken,  of  which  the  present  crime  is  the  distant  issue.  The 
punishment,  which  the  judge  can  and  must  impose,  refers 
to  a  crime  for  which  there  was  no  freedom  of  action;  and 
on  the  other  hand,  the  action  which  seems  to  be  free  has 
probably  no  criminal  status  and  carries  with  it  no  punish- 

1  George  Eliot  presents  an  admirable  psychological  analysis  of  the  truly 
decisive  effects  of  this  first  step  in  the  path  of  compromise  with  conscience. 
See  George  Eliot,  "Koniola,"  end  of  chap,  ix,  "A  Man's  Ransom." 


§31]  THE  NEO-CLASSIC  SCHOOL  89 

ment.  Hence  the  criminal  should  not  be  punished  at  all, 
neither  on  the  one  account  nor  on  the  other:  not  on  the 
latter,  because  it  was  not  a  criminal  offense,  or,  if  one,  be- 
cause it  is  ruled  out;  not  on  the  former,  for  though  it  con- 
stituted an  infraction  of  criminal  law  it  does  not  involve 
a  free  act. 

To  reach  a  different  decision  it  would  be  necessary  to 
abandon  the  theory  of  responsibility  and  return  to  the  con- 
ception of  the  social  risk.  There  is  no  real  responsibility 
for  an  act  committed  in  a  condition  that  is  not  free;  there 
is  only  the  initial  responsibility  dating  back  to  a  former 
action  which  was  executed  in  a  state  of  freedom  and  of  which, 
by  an  inevitable  sequence,  the  present  crime  has  become 
the  issue.  The  first  and  responsible  action  carries  with  it 
the  series  of  consequences.  For  an  act  committed  in  a 
state  of  freedom  the  agent  accepts  the  full  responsibility, 
not  alone  morally  but  socially  and  in  all  its  consequences, 
however  remote.  The  act  becomes  related  to  the  social 
interest.  To  commit  a  crime  involves  the  acceptance  of 
every  responsibility  which  it  entails,  both  with  reference 
to  society  and  to  all  further  contingencies.  The  agent  in- 
curs the  risk  of  becoming  dangerous  to  the  community; 
hence  he  is  responsible  for  his  further  conduct,  and  society 
punishes  the  resulting  criminality.  For  every  crime  that 
ensues  society  has  the  right  to  exact  payment.  It  may  be 
that  the  issue  was  unintended,  but  it  is  the  issue  of  conduct 
adopted  in  a  former  state  of  freedom.  This  view  may  be 
acceptable,  but  clearly  it  is  no  longer  the  principle  of  pun- 
ishment based  upon  moral  responsibility.  It  is  the  principle 
of  social  responsibility  so  well  described  by  Ferri  and  the 
Italian  school.  According  to  them  one  is  not  responsible 
for  a  crime  unless  it  was  premeditated  in  a  state  of  free- 
dom; at  any  rate,  one  is  but  socially  responsible,  because 


90  INDIVIDUALIZATION  OF  PUNISHMENT       [§  32 

the  danger  and  injury  to  society  which  the  action  might 
cause,  should  have  been  taken  into  account.  Or  if  one  holds 
to  the  principle  of  moral  responsibility  the  crime  must  be 
considered  as  a  misdemeanor  due  to  negligence.  The  act 
itself  was  not  a  free  act,  but  was  the  issue  of  a  previous 
action  committed  in  freedom.  Such  was  the  position  of 
the  classic  school  relative  to  offenses  committed  in  a  state 
of  intoxication,  when  the  crime  was  not  premediated  but 
was  the  issue  of  indiscretion.  The  crime  thus  committed 
refers  back  to  the  responsibility  for  the  first  error  —  that 
of  indulgence  in  excessive  drink  —  and  becomes  a  mis- 
demeanor. Under  the  theory  of  responsibility  a  man  so 
fuddled  by  his  vices  and  his  passions  as  to  have  lost  the 
consciousness  of  freedom  for  his  acts  is  like  an  intoxicated 
man  who  acts  blindly  and  who  is  responsible  only  for  his 
intoxication.  Yet,  is  it  quite  certain  that  the  criminal  is 
always  really  responsible  for  his  intoxicated  state?  Is  it 
so  certain  that  one  can  find  a  precise  and  decisive  moment 
which  warrants,  so  far  as  any  ordinary  appearance  goes, 
the  inference  that  it  is  freely  determined  and  itself  deter- 
mines the  future?  May  it  be  maintained  that  everyone 
experiences  such  critical  and  impressive  moments,  when 
the  decision  taken  fixes  the  responsibility  for  the  rest  of 
life? 

§  32.   The  Social  Responsibility  for  Grime 

In  the  Middle  Ages  this  issue  between  freedom  and  respon- 
sibility was  dramatically  expressed.  A  man  vowed  himself 
to  God  or  to  the  Devil,  and  the  vow  once  taken  there  was 
to  be  no  complaint  of  the  final  reckoning.  But  can  it  be 
supposed  that  the  story  of  Faust  is  repeated  in  the  life  of 
every  criminal?  The  ordinary  criminal  is  from  infancy 
reared  in  crime  and  misery,  with  no  other  education  than 
that  of  vice,  with  no  other  trade  than  that  of  theft.  Is  it 


§32]  THE  NEO-CLASSIC  SCHOOL  91 

possible  to  specify  a  moment  in  such  a  career  in  which  there 
occurred  the  free  and  critical  act  which  justifies  the  ap- 
plication of  punishment?  The  most  responsible  factor  in 
such  cases  is  poverty;  and  for  this  society  possibly  is  re- 
sponsible in  that  it  imposes  upon  these  unfortunates  hard 
conditions  of  economic  life,  with  an  inadequate  education 
and  without  the  steadying  support  of  religion.  The  fault 
lies  in  the  environment  with  its  deprivations  and  its  ir- 
regular relations.  It  is  a  life  without  outlook  and  without 
opportunity,  and  makes  these  lowly  unprivileged  classes 
feel  that  they  belong  to  another  race,  and  that,  after  all, 
to  steal  is  their  profession  just  as  for  the  upper  classes,  whose 
luxury  they  resent,  the  privileged  life  is  the  life  of  pleasure. 
In  the  old-time  ballads  the  humble  were  told  that  their 
lot  in  life  was  the  best  possible.  The  simple  life  was  de- 
picted as  a  beautiful  life,  as  furthering  the  mystic  longings 
of  the  soul,  as  secure  in  the  promise  of  the  life  to  come.  Such 
ballads  endowed  these  lowly  and  simple  folk  with  the  priv- 
ileges of  the  spiritual  life,  and  awoke  in  them  a  correspond- 
ingly deep  feeling  of  morality,  for  they  felt  that  being  called 
to  future  reward  they  must  be  more  worthy.  It  was  they 
who  formed  the  upright  and  virtuous  portion  of  the  people; 
and  the  miracle  was  realized  that  the  least  fortunate  class 
in  the  world  preserved  their  morality  intact,  maintained 
a  higher  and  stricter  responsibility,  and  through  such  means 
became,  in  truth,  the  most  fortunate.  Such  ideal  days  no 
longer  exist.  We  have  entered  upon  a  period  of  disillusion- 
ing realism,  which  reveals  the  conflict  of  classes  and  the 
feeling  of  unconquerable  antagonism  among  the  various 
strata  of  society.  We  are  not  in  a  position  to  understand 
what  may  be  the  psychological  conception  of  responsi- 
bility on  the  part  of  the  submerged,  who  have  nothing  to 
lose  by  crime  or  by  the  penalties  of  the  law.  They  probably 


92  INDIVIDUALIZATION  OF  PUNISHMENT       [§  32 

experience  states  of  mind  from  which  we  are  exempt  and 
which  we  can  but  feebly  appreciate.  Unquestionably  there 
are  conditions  of  innate  perversion,  of  hereditary  degen- 
eracy, which  the  environment  but  fixes  and  develops.  Some 
individuals  do  not  seem  to  have  at  any  moment  of  their 
careers  an  active  consciousness  of  a  moral  distinction  thor- 
oughly and  intimately  felt,  such  as  the  penal  code  requires 
as  evidence  of  responsibility.  It  is  not  possible  in  their 
cases  to  establish  a  real  and  specific  responsibility;  neither 
for  their  most  recent  crimes  for  which  they  are  held  to  ac- 
count, nor  for  the  first  petty  theft,  which,  itself  undetected, 
may  have  been  the  starting-point  for  all  the  rest.  But 
does  it  follow  that  these  criminals  should  be  permitted  to 
live  on  in  peace,  and  'be  free  to  continue  their  exploits  as 
they  choose? 

The  first  and  chief  objection  to  which  the  policy  of  in- 
dividualization  is  exposed  is  that  it  encounters  insurmount- 
able difficulties  in  establishing  a  proper  basis  of  application. 
Instead  of  finding  freedom  of  action  everywhere,  the  newer 
view  is  inclined  to  find  it  nowhere,  and  to  recognize  only 
irresponsibility.  All  men  at  times  entertain  more  or  less 
unworthy  or  perverse  motives,  more  or  less  fierce  or  pas- 
sionate impulses;  and  these,  when  developed  to  the  ex- 
treme, darken  the  mind  and  blind  the  reason,  and  thus 
contribute  to  the  immediate  causes  of  crime,  and  like  in- 
creasing shadows  obscure  the  waning  freedom  of  action. 
Shall  they  be  regarded  as  a  sufficient  excuse,  or  even  as  a 
justification,  for  acquittal?  And  though  this  supposition 
seems  an  anomaly,  to  the  discredit  of  juries  let  it  be  noted 
that  their  verdicts  have  frequently  made  it  a  reality.  When 
we  come  upon  quite  inexplicable  acquittals,  and  most  un- 
expected claims  of  extenuating  circumstances,  we  suspect 
and  find  that  in  fact  there  was  an  underlying  belief  that  the 


§33]  THE  NEO-CLASSIC  SCHOOL  93 

defendant  lacked  moral  freedom.  And  since  it  is  never 
possible  to  tell  whether  moral  freedom  was  present,  there 
enters  an  uncertainty  that  affects  the  entire  position;  and 
verdicts  in  criminal  as  in  other  cases  are  commonly  decided 
by  such  impressions. 

§  33.  Motives  and  the  Impressionism  of  Juries 

Such  is  the  first  charge  against  the  neo-classic  school: 
that  in  practice  it  encounters  a  difficulty,  and  that  its  prin- 
ciples lead  to  untenable  results.  As  a  second  objection, 
it  may  be  advanced  that  it  is  based  upon  a  scientific  error. 
As  M.  Tarde  has  well  demonstrated  in  his  "Philosophic 
penale,"  responsibility  is  universally  recognized  as  a  con- 
ception of  social  origin.  Therefore  it  must  not  be  converted 
into  an  abstract  and  preconceived  notion,  into  something 
quite  visionary  without  any  corresponding  reality.  It  must 
be  taken  as  it  is  actually  found  in  the  general  consciousness 
of  the  people,  as  it  is  currently  accepted  by  the  average 
mind. 

It  is  the  jury  that  best  represents  such  average  opinion. 
Every  legal  or  judicial  application  of  responsibility  that 
runs  counter  to  common  opinion  may  be  considered  as  a 
scientific  mistake  of  the  first  order;  for  it  opposes  the  find- 
ings of  history.  Though  the  principle  is  but  vaguely  ex- 
pressed, there  is  found  underlying  the  social  aspect  of 
responsibility  an  inherent  faith  in  the  doctrine  of  freedom. 
But  it  is  noteworthy  that,  in  practice,  freedom  is  not  relied 
upon  to  determine  the  degree  of  responsibility  in  concrete 
cases.  Freedom  is  regarded  as  everywhere  present,  and 
accordingly  is  never  mentioned;  as  similarly  it  was  not  men- 
tioned in  the  code  of  1810.  Freedom  is  a  negligible  factor 
because  it  is  assumed  to  be  everywhere  present.  Attention 
is  centered  upon  the  perversity  of  motives  and  upon  the 


94  INDIVIDUALIZATION  OF  PUNISHMENT       [§  33 

circumstances  that  condone  the  crime,  such  as  the  ante- 
cedents of  the  defendant,  his  environment,  his  education, 
and  his  general  morality.  The  majority  of  astonishing  ac- 
quittals are  not  due  to  the  jury's  belief  that  there  was  no 
freedom  of  action.  On  the  contrary,  in  such  cases  there  is 
usually  established  a  deliberate  intention  and  premedi- 
tation, and  of  this  the  jury  is  thoroughly  convinced.  But 
the  circumstances  of  the  crime,  and  particularly  the  motives 
that  incited  it,  are  such  as  do  not  arouse  general  indignation. 
They  are  motives  that  accord  with  the  normal  public  opin- 
ion. The  criminal,  far  from  appearing  to  the  members  of 
the  jury  who  must  pass  judgment  upon  him,  as  abnormal 
through  the  perversity  of  his  feelings,  as  deviating  from 
their  own  social  standards,  or  as  unattached  or  ill-adjusted, 
appears  as  a  fellow-man  whose  thoughts  and  desires  and 
passions  are  aroused  as  are  theirs.  The  feeling  that  led 
to  the  crime  is  such  as  is  universally  approved,  and,  on 
occasion,  is  acknowledged  by  every  one.  The  emotion  is 
possibly  more  violent  than  usual,  but  that  is  only  a  question 
of  degree.  The  man  is  not  a  being  of  another  type,  offensive 
to  the  body  social;  his  crime  is  regarded  as  an  accident, 
and  not  as  the  manifestation  of  a  dangerous  personality 
to  be  scorned  and  repudiated.  Accordingly,  while  well 
aware  that  he  is  the  material  agent  of  the  crime,  juries  ac- 
quit him;  they  pronounce  him  unaccountable,  and  therefore 
morally  irresponsible.  Their  decision  is  reached  not  on  the 
basis  of  a  mental  defect  but  as  a  general  psychological 
impression.  It  is  this  complex  yet  definite  group  of  senti- 
ments that  accounts  for  the  majority  of  surprising  acquit- 
tals. The  juries  base  their  verdict  not  upon  the  greater 
or  less  degree  of  freedom  involved  in  the  crime  but  upon 
the  nature  and  motives  of  the  feelings  that  incite,  control, 
and  characterize  it. 


§34]  THE  NEO-CLASSIC  SCHOOL  95 

And  indeed  to  detach  a  human  fact  from  the  series  of  its 
antecedent  factors  is  wholly  unwarranted  and  unscien- 
tific. To  make  responsibility  depend  solely  upon  the  evi- 
dence of  freedom  is  to  separate  the  human  action  from 
everything  that  contributes  thereto,  to  look  upon  it  ab- 
stractly as  an  expression  of  pure  will.  Such  a  procedure 
leaves  out  of  account  the  motives,  the  fundamental  im- 
pulses, and  all  that  leads  up  to  and  accounts  for  the  act. 
What  could  be  more  anomalous  than  that  the  criminal  judge 
regards  such  matters  as  indifferent,  as  unworthy  of  his  con- 
sideration! Furthermore  he  detaches  from  its  setting  the 
act  of  the  will  which  contributes  the  decisive  impulse,  as 
though  it  were  an  isolated  action,  independent  of  circum- 
stances and  antecedents.  The  circumstances  are  considered 
only  in  their  bearing  upon  a  judgment  of  the  degree  of  will 
and  of  freedom  that  the  crime  implies.  Such  procedure  is 
like  dividing  the  human  act  in  two  and  judging  it  by  the 
latter  half  alone.  This  is  the  least  evidential  and  convinc- 
ing if  its  moral  status  is  to  be*  judged  independently, 
instead  of  being  judged  as  a  whole  and  in  its  inherent  com- 
plexity, as  an  expression  of  the  morality  or  immorality  of  a 
human  individual  whose  future  interests  have  a  right  to  a 
hearing. 

§  34.   Individualization  Resulting  from  the  Variable  Attitude 

of  Juries 

Furthermore,  juries  will  not  assent  to  the  legal  paradox 
that  requires  responsibility  to  be  determined  solely  by  the 
degree  of  freedom.  Hence,  under  the  influence  of  public 
opinion,  the  jury  introduces  a  twofold  measure  of  individu- 
alization.  To  begin  with,  the  jury  is  thus  instructed:  "You 
have  not  to  consider  the  degree  to  which  freedom  was  present 
when  the  act  was  committed.  From  the  point  of  view  of 


96  INDIVIDUALIZATION  OF  PUNISHMENT        [§  34 

the  law  this  is  always  the  same.  You  have  only  to  decide 
whether  the  accused  was  of  sound  mind,  and  whether  he  was 
the  material  agent  of  the  crime;  the  question  of  freedom  does 
not  concern  you."  But  the  jury,  when  charged  with  the 
question  of  accountability,  decides  the  issue  upon  this  same 
conception  of  freedom,  and  considers  that  its  function  and 
duty  is  to  estimate  and  appraise  the  degree  of  freedom.1 
This  is  the  first  step  in  the  individualization  of  punishment; 
but  once  launched,  it  is  forced  to  go  farther  in  the  consider- 
ation of  the  individual;  and  thus  the  second  step  in  individu- 
alization is  reached.  To  determine  the  degree  of  freedom 
is  futile  and  impossible.  The  psychological  judgment  ob- 
serves and  confirms  not  the  freedom  of  the  action,  for  this  is 
always  elusive,  but  the  motives,  the  contributory  causes  as 
a  whole,  which,  various  and  complex,  have  incited  the  action. 
The  responsibility,  as  judged  and  considered  by  the  jury,  is 
a  responsibility  based  upon  the  aggregate  complexity  of  the 
moral  causes  that  account  for  the  commission  of  the  crime, 
and  this  is  the  principle  that  must  be  followed,  because  it  is 
the  principle  of  all  human  estimates  and  judgments.  Re- 
sponsibility as  ordinarily  applied  is  a  conception  based  upon 
a  preconceived  conception  of  freedom;  but  it  is  determined 
in  fact  and  in  its  application  by  a  strictly  empirical  standard. 
The  question  of  freedom  remains  the  underlying  issue;  but 
a  deterministic  principle  furnishes  the  means  of  application 

1  See  the  proposal  submitted  (on  the  20th  of  March)  to  the  Chambre  des 
deputes,  by  M.  Briand,  "having  for  its  object  to  confer  upon  criminal  juries 
the  power  to  consider  the  application  of  punishment."  This  proposal  is 
designed  to  place  the  law  in  complete  agreement  with  the  facts  (Journal 
officiel  documents  parlementaires,  Chambre  des  d6put6s,  No.  1605).  Consult 
the  excellent  study  of  M.  Corentin  Guyko,  "Les  Jures  '  maitres  de  la  peine '" 
(Paris,  A.  Pedone,  1908).  Also  consult  on  the  subject  of  the  Briand  pro- 
posal an  interesting  letter  of  M .  de  Seigneux,  the  former  president  of  the 
"Cour  de  cassation"  of  Geneva,  who  sets  forth  in  suggestive  manner  the 
results  of  the  reform  at  Geneva.  Temps,  April  4,  1908. 


§34]  THE  NEO-CLASSIC  SCHOOL  97 

and  remains  the  sole  possible  criterion  of  judgment.  This  we 
observe  universally  in  human  judgments,  and  it  equally 
directs  the  deliberations  of  juries. 

From  this  source  arise,  in  practice,  the  wholly  inconsist- 
ent verdicts  of  juries,  the  injustice  of  which  is  well-nigh 
scandalous;  for  there  is  no  rule,  no  uniform  standard  of  judg- 
ment. At  times  the  jury's  attitude  is  derived  from  the  con- 
sideration of  freedom  and  intent  alone,  and  accordingly  it  is 
the  degree  of  premeditation  that  is  considered.  In  other 
instances  freedom,  will,  and  premeditation  are  disregarded, 
and  the  crime  is  recognized  as  a  freely  willed  action;  and 
then  it  is  the  motives  and  the  determining  circumstances  of 
the  crime  that  are  taken  into  account.  There  is  likewise  a 
tendency  to  penetrate  more  and  more  deeply  into  the 
analysis  of  the  nature  and  character  of  the  defendant, 
utilizing  the  consideration  of  motives  and  contributory 
causes  for  this  purpose.  All  this  leads  to  capricious  and 
variable  decisions.  Each  jury  has  its  own  standards  of 
judgment,  and  each  juryman  individually  has  his.  It  is 
almost  a  justice  of  chance,  which  is  the  worst  and  most 
disconcerting  of  all. 

But  all  this  belongs  more  to  the  past  than  to  the  present. 
We  have  reviewed  the  history  of  these  doctrines,  and  what 
has  preceded  may  be  considered  as  belonging  to  former 
stages  of  penology.  The  state  of  affairs  about  to  be  con- 
sidered belongs  to  the  present,  to  the  actual  status  of 
criminal  justice.  It  applies  not  alone  to  France  but 
wherever  justice  is  subject  through  juries  to  the  reflex 
influence  of  popular  sentiment  and  public  opinion.  We 
have  thus  reached  an  alternative  from  which  there  is  no 
escape.  We  must  either  return  to  the  purely  abstract 
and  objective  justice  of  the  penal  code  or  find,  as  best 
we  may,  other  measures  of  individualization,  based  not 


98  INDIVIDUALIZATION  OF  PUNISHMENT       [§34 

upon    an   empirical   procedure  but   upon  a  truly  scientific 
criterion.1 

1  The  theory  of  diminished  responsibility,  involving  as  its  sole  conse- 
quence the  mitigation  of  the  punishment,  which  is  the  essential  principle  of 
the  neo-classic  school,  has  been  the  subject  of  active  controversy  since  1898. 
In  chronological  order  may  be  mentioned,  first,  the  discussion  upon  "The 
problem  of  the  limited  responsibility  of  offenders,"  in  the  ninth  session  of 
the  German  division  of  the  International  Union  of  Penal  Law,  held  in  June, 
1903,  at  Dresden  (Bulletin  de  I' Union  Internationale  de  droit  penal,  Vol.  11, 
p.  625,  seq.).  The  same  problem  was  considered  in  the  discussions  before  the 
Societ6  g6n6rale  des  prisons  in  1905,  in  the  report  of  M.  Leredu,  relative  to 
the  "Traitement  a  appliquer  aux  del  in  quants  a  responsabilitS  limited" 
(Revue  penitentiaire,  1905,  p.  43,  seq.,  p.  187,  seq.,  p.  313,  seq.,  p.  474,  seq.). 
The  question  was  reconsidered  September,  1905,  by  von  Liszt  (Revue  peni- 
tentiaire,  1905,  p.  1008).  In  the  same  year  a  discussion  on  this  subject  was 
entered  upon  at  the  Congress  at  Budapesth  (Revue  penitentiaire,  1905, 
p.  1183). 

The  work  of  Dr.  Legrain,  including  an  important  preface  by  M.  Garcon, 
should  likewise  be  mentioned,  "Elements  de  medicine  mentale  appliques  a 
1'etude  du  droit"  (Paris,  1906);  and  also  the  scholarly  work  of  Dr.  Grasset, 
"Demi-fous  et  Demi-responsables"  (Paris,  1907).  Note  particularly  the 
chapter  on  the  "Demi-fous  devant  la  justice,"  p.  218,  seq.  A  critical  review 
of  this  book  appears  in  the  Revue  scientifique  of  February  2,  1907,  p.  143,  seq. 
"La  responsabilit6  des  criminels  (Paris,  1908)  was  written  as  an  outcome  of 
the  important  Congress  of  Alienists  and  Neurologists  held  at  Geneva,  August, 
1907.  It  reports  the  discussion  at  the  Congress,  and  the  controversies  that 
followed.  As  opposed  to  the  views  of  Dr.  Grasset,  the  important  report  to 
the  Congress  at  Geneva  by  Dr.  Gilbert  Ballet  may  be  read:  "L'expertise 
medico-legale  et  la  question  de  responsabilite,"  Geneva,  1907.  Also  by  the 
same  author,  "La  responsabilite  des  criminels"  (an  answer  to  Dr.  Grasset), 
in  the  Journal  de  psychologic  normale  et  pathologique  (January-February, 
1908).  [English  translation  of  Grasset,  1909.] 

Lastly,  on  the  same  subject,  may  be  consulted  the  thesis  by  M.  A.  Neret, 
"  La  Responsabilite  attenuee,"  particularly  chap,  ii,  p.  59,  seq.  Attention 
should  be  directed  to  the  very  interesting  discussion  on  this  same  question 
that  took  place  at  the  Societe  francaise  de  philosophic,  on  January  30,  1908, 
"Des  Responsabilites  attenu^es  en  matiere  p£nale,"  and  to  the  able  report 
of  M.  A.  le  Poittevin,  professor  in  the  Faculty  of  Law  at  Paris  (Bulletin  de 
la  Societe  frangaise  de  philosophic,  March,  1908,  p.  71,  seq.). 

Consult  on  these  points  articles  16  and  17  of  the  "  Avant-projet  du  code 
ix'nal  suisse"  (the  text  of  1903);  and  on  "  Zurechnungsfahigkeit,"  §  51  of 
the  German  penal  code,  apart  from  the  Lehrbuch  of  von  Liszt,  see  Reinhard 
Frank,  "Das  Strafgesetzbuch  ftir  das  deutsche  Reich  (Tubingen,  Mohr, 
p.  107,  »eq.). 


CHAPTER  V 

THE  ITALIAN  SCHOOL  AND  INDIVIDUALIZATION  BASED 
UPON  FORMIDABILITY 

§  35.   Historical  Review  of  the  Italian  Movement  in  Penology. 

§  36.   Practical  Situations  and  Reforms:  the  making  of  the  Recidivist. 

§  37.   The  Solution  proposes  the  personal  Consideration  of  the  Offender  and 

his  Social  Reinstatement. 
§  38.   Gradation  by  Presumptive  Morality  and  Good  Conduct  of  Offenders: 

Protest  against  Promiscuous  Association. 

§  39.   Criticism  of  the  Position :  its  Basis  in  Law  and  Public  Opinion. 
§  40.   Purpose  and  Effect  of  Punishment:  Consequent  Status  of  Crime. 
§  41.   The  Types  of  Criminals  and  their  Individualized  Treatment. 
§  42.   Difficulties  attaching  to  the  Position  of  Lombroso. 
§  43.   A  Third  Italian  School. 
§  44.  The  Physical  Recognition  of    the  Criminal:  Innate  and  Acquired 

Degenerate  Traits. 

§  45.   Other  Phases  of  Italian  Penology:  Judicial  Diagnosis. 
§  46.   What  Italian  Penology  has  accomplished. 

§  35.  Historical  Review  of  the  Italian  Movement  in  Penology 

THE  several  shades  and  grades  of  position  of  the  classic 
school  have  been  passed  in  review,  and  their  inadequacy 
duly  set  forth.  Let  us  consider  the  proposals  offered  in 
place  thereof.  Shall  we  find  the  desired  principles  of  indi- 
vidualization  in  the  contributions  of  the  anti-classic  modern 
schools?  That  remains  to  be  seen.  It  is  familiar  that  the 
modern  school,  which  it  has  been  agreed  to  call  the  Italian 
school,  is  deliberately  and  radically  opposed  to  the  classic 
legal  system.  No  complete  exposition  of  this  school  will 
here  be  attempted.  It  will  suffice  to  present  a  survey  of  its 
teachings  in  so  far  as  they  pertain  to  the  problem  of  in- 
dividualization. 

99 


100         INDIVIDUALIZATION  OF  PUNISHMENT       [§  35 

It  may  be  well  to  begin  by  removing  a  slight  misunder- 
standing on  the  part  of  those  unacquainted  with  the  meaning 
of  the  term  "Italian  school"  in  current  penological  theory. 
It  must  not  be  supposed  that  under  this  generic  term  are  in- 
cluded all  modern  Italian  criminologists.  On  the  contrary, 
it  should  be  borne  in  mind  that  in  Italy  there  always  have 
been  and  still  are  many  distinguished  criminologists,  such 
as  Carrara  (to  mention  only  the  most  eminent),  who  belong 
to  a  notable  classic  school,  nor  should  it  be  forgotten  that 
Rossi  was  of  Italian  origin.  But  since  Beccaria,  Italy  seems 
to  have  been  constantly  at  the  head  of  the  scientific  move- 
ment in  the  field  of  criminal  law,  and,  indeed,  may  be  said  to 
have  been  ever  in  advance  of  the  age.  Beccaria  and  his  fol- 
lowers rejected  the  abstract  and  objective  foundations  of 
the  classic  school,  and  this  at  a  time  when  the  abuses  of 
the  discretionary  power  of  the  judge  seemed  to  show  that 
there  was  no  alternative  other  than  the  provision  of  a  gen- 
eral and  uniform  application  of  a  legal  principle.  Later,  at 
the  time  of  Rossi,  the  Italian  school,  with  the  support  of  the 
men  who  brought  fame  to  its  universities,  became  the  pro- 
moter of  the  great  movement  of  individualization  with 
reference  to  responsibility,  which  may  be  considered  as  the 
characteristic  of  the  neo-classic  school.  For  thirty  years, 
as  is  well  known,  this  school  has  promulgated  a  new  and 
most  radical  reform. 

Finally  it  should  be  noted  that  the  classic  Italian  school 
was  the  sole  source  and  inspiration  of  the  new  Italian  penal 
code  of  1889.  This  code  is  the  most  developed  embodiment 
of  the  neo-classic  school.  As  a  work  legal  in  essence  and  hi 
form,  it  is  a  most  remarkable  achievement;  it  presents  an 
unexampled  nicety  of  distinction  and  detail;  it  enters  into 
a  discerning  analysis  of  the  facts;  it  considers  the  minutest 
details;  and  it  anticipates  every  contingency.  In  it  the  law 


§  35]  THE  ITALIAN  SCHOOL  101 

takes  the  place  of  the  judge;  it  aims  to  foresee  and  provide 
for  all  possible  cases  of  individualization,  and  to  point  out 
the  proper  treatment.  It  is  a  catalogue  of  individual  cases. 
The  judge  has  only  to  refer  to  his  code  to  find  the  special 
case  applicable  to  the  situation  confronting  him,  and  when 
the  case  is  found,  the  solution  is  at  hand;  he  has  but  to  read 
and  apply.  The  code  is  an  admirable  scientific  production, 
but  unfortunately  it  serves  as  the  epitome  of  a  completed 
stage,  and  not  as  the  introduction  to  a  further  advance;  and 
for  this  reason  it  is  unsuited  as  a  basis  of  legislation.  To 
delay  codification  until  a  system  is  scientifically  complete  is 
to  run  the  risk  of  making  it  merely  an  historical  record,  the 
registry  of  a  movement  that  admirably  summarizes  the  work 
of  the  past  but  is  no  longer  in  conformity  with  the  new  con- 
ceptions in  process  of  formation.  Codes  of  law,  even  at  the 
risk  of  omissions  and  imperfections,  should  be  framed  when 
a  system  is  beginning  to  enter  public  consciousness.  They 
should  direct  the  application  and  the  formulation  of  the  doc- 
trines based  upon  them.  If  they  appear  when  the  system 
they  represent  is  far  along  in  development,  and,  indeed,  close 
to  its  decline,  they  are  no  longer  in  sympathetic  contact  with 
life;  and  for  legislation  this  is  a  serious  evil.  This  misfortune 
is  perhaps  threatening  both  the  new  Italian  penal  code  and 
the  proposed  revision  of  the  French  penal  code,  unless,  in- 
deed, prompt  measures  for  fundamental  reconstruction  of  the 
latter  be  taken.  The  abuses  involved  in  the  abstract  char- 
acter of  the  Italian  classic  school  have  given  rise  to  another 
school  which  is  known  simply  as  the  Italian  school  without 
further  qualification. 

An   extremely   important   scientific   movement   began   in 
Italy  about  1875.1     In  general  the  movement  was  the  culmi- 
nation of  several  positivist  systems,  but  was  inspired  more 
1  The  first  edition  of  Lombroso'a  "The  Criminal"  appeared  in  1876. 


102         INDIVIDUALIZATION  OF  PUNISHMENT        [§35 

particularly  by  the  growth  of  two  sciences  of  relatively  recent 
origin,  anthropology  and  sociology.  Thus  this  new  Italian 
school  has  variously  been  called  the  positivist,  or  the  an- 
thropological, or  the  sociological  school.  To  include  its 
several  aspects  without  committing  oneself  to  any  one  in 
particular,  it  has  been  called  more  generally  and  with  suffi- 
cient definiteness  the  Italian  school. 

This  school,  whose  most  distinguished  representatives  are 
Lombroso,  Ferri,  Garofalo,  Sighele,  arose  as  a  direct  reaction 
against  the  principle  of  the  freedom  of  the  will  as  understood 
in  the  classic  sense,  which  made  crime  the  issue  of  a  free  act. 
The  Italian  school  looks  upon  crime  as  a  natural  product,  as 
a  result  of  purely  natural  factors  that  leave  no  place  for 
freedom.  For  Lombroso  these  factors  are  almost  wholly 
anthropological;  for  Ferri  they  are  more  particularly  sociologi- 
cal; but  this  distinction  is  not  important.1  Whether  crime 
is  the  issue  of  hereditary  conditions  or  of  factors  purely  social, 
it  is,  in  either  case,  the  necessary  consequence  of  a  group  of 
natural  conditions  hi  which  the  conception  of  freedom  has 
no  place.  The  significant  social  factors  include  the  moment- 
ous influences  of  the  environment,  the  economic  conditions 
of  life,  the  limitations  of  poverty,  or  rather,  hi  M.  Tarde's 
phrase,  the  reflex  influence  of  increasing  luxury  and  of  the 
corruption  which  its  example  spreads  through  all  stages  of 
society. 

The  divergences  in  the  position  of  Ferri  and  Lombroso  are 
of  slight  consequence,  at  least  so  far  as  they  concern  the  in- 
trinsic character  of  crime;  for  both,  crime  is  a  purely  natural 
product.  As  it  affects  the  masses,  it  has  a  social  function 
analogous  to  that  attaching  to  war;  it  serves  the  same  func- 
tion of  elimination  in  its  relation  to  individuals.  As  is  also 

1  Ferri,  "Sociologie  criminelle";  see  also  Vaccaro,  "Genesi  e  funzioni  delle 
leggi  penali." 


§36]  THE  ITALIAN  SCHOOL  103 

true  of  war,  crime  seeks  only  to  transform  and  not  to  destroy; 
and  in  so  far  there  is  a  common  psychological  or  sociological 
inspiration.1  It  is  however  important  to  distinguish  be- 
tween the  point  of  view  of  Lombroso  and  that  of  Ferri  in  so 
far  as  relates  to  the  practical  consequences  of  their  views  and 
the  reforms  which  each  proposes  to  introduce  in  criminology. 

§  36.  Practical  Situations  and  Reforms :   the  Making  of  the 

Recidivist 

Although  on  the  positive  side  the  Italian  school  appears 
primarily  as  the  consequence  of  a  series  of  philosophic  and 
scientific  considerations,  it  presents  as  well  a  negative  side, 
which  is  based  upon  a  criticism  of  the  results  attributed  to 
the  prevalent  system.  Yet  this  dominant  school,  if  judged 
by  its  results,  may  be  said  to  have  gone  bankrupt,  as  the 
popular  expression  goes. 

The  level  of  a  movement  is  never  higher  than  its  source. 
Under  the  influence  of  the  leading  idealists  (Rossi),  criminal 
law  became  humanized,  ennobled,  and  in  a  measure  spiritual- 
ized. The  conception  of  freedom  remained  its  starting  point; 
yet  equally  the  analytic  study  of  each  offender  was  under- 
taken. The  conception  of  penalty  as  a  satisfaction  due  to 
the  sense  of  justice  was  retained;  and  equally,  in  a  happy 
eclecticism,  punishment  began  to  be  looked  upon  as  an  in- 
strument of  social  defense.  The  practical  interests  were 
combined  with  those  of  abstract  justice,  and  jointly  there 
emerged  the  conception  of  a  social  justice,  —  an  appropriate 
expression  that  meets  the  requirements  of  principle  and  of 
society  alike.  It  seemed  that  in  this  advance  criminal  law 
had  reached  its  highest  development.  Reflecting  the  popular 
acceptance  of  natural  law  in  human  affairs,  criminal  law 
seemed  to  have  found  its  true  principle  as  part  thereof.  This 

1  See  Lombroso,  "La  Funzione  sociale  del  delitto,"  Palermo,  1896. 


104         INDIVIDUALIZATION  OF  PUNISHMENT       [§  36 

however  did  not  affect  the  practical  results,  for  crime  had 
never  been  more  prevalent.  The  tide  of  crime  arose  with 
each  successive  statistical  inquiry,  and  the  more  severely 
justice  was  administered,  the  more  crime  increased  and  spread. 
One  seemed  justified  in  believing  that  punishment  was  the 
chief  concern  of  criminology,  and  that  criminal  laws  favored 
the  growth  of  crime. 

In  truth  the  increase  of  crime  was  largely  due  to  the  re- 
cidivists; or  to  be  more  exact,  to  young  offenders  and  re- 
cidivists jointly.  But  perhaps  the  two  are,  in  origin,  one. 
The  criminality  of  the  young  leads  to  their  technical  acquittal 
with  detention  in  reformatories;  when  they  are  again  sen- 
tenced at  adult  age  they  are  put  down  as  first  offenders  in 
the  official  statistics,  and  in  law  they  are  such.  In  reality 
they  are  habitual  offenders,  graduating  from  a  state  colony, 
who  give  evidence  of  the  effect  of  the  penitentiary  system. 
They  illustrate  its  results  and  its  value.  It  may  be  urged 
that  from  the  days  of  their  adolescence  these  youthful 
offenders  are  already  so  thoroughly  contaminated  that  no 
penitentiary  discipline,  no  educational  system,  can  serve  to 
redeem  them.  Very  possibly  the  defect  lies  in  them,  in  their 
character,  and  not  in  the  remedial  measures.  Lombroso  and 
Ferri  hold  that  they  are  either  born  criminals  or  by  nature 
incorrigible.  This  is  not  the  view  of  those  who  believe  in 
responsibility  and  freedom,  and  consequently  in  the  possi- 
bility of  reform  through  moral  appeal.  The  Italian  school 
takes  its  stand  squarely  on  the  other  side  of  this  issue.  Yet 
the  school,  together  with  the  legal  practices  which  it  upholds, 
is  in  every  respect  losing  ground. 

Moreover,  apart  from  the  persistence  in  crime  of  young 
offenders,  as  above  noted,  statistics  establish  a  considerable 
increase  of  crime  among  habitual  adult  offenders,  that  is, 
of  those  whose  first  sentence  occurred  after  they  had  reached 


§36]  THE  ITALIAN  SCHOOL  105 

majority.  In  so  far  as  this  is  true  either  of  minors  or  of 
adults,  and  whether  we  consider  penal  colonies  or  jails,  in 
general  it  may  be  said  that  prison  life  breeds  the  prison 
habit.  When  the  increase  of  crime  occurs  particularly 
among  first  offenders,  the  social  conditions  are  primarily 
unwholesome  and  public  morality  low  ;  and  this  at  present 
is  the  case.  But  when  the  growth  of  crime  reaches  its  high- 
est point  among  recidivists,  it  is  the  punishment  that  is  at 
fault,  since  in  place  of  preventing  crime,  it  encourages  it. 
Instead  of  eliminating  the  latent  and  potential  criminality 
of  offenders,  it  furthers  it  ;  and  it  does  so  by  weakening 
the  sense  of  honor  and  personal  worth,  which  is  among  the 
surest  safeguards  of  morality,  and,  for  the  majority  of  men, 
the  most  enduring.1 

If  a  system  is  to  be  judged  by  its  results,  the  classic  school 
may  be  pronounced  a  failure.  To  this  it  may  be  replied 
that  the  fault  lies  not  in  the  system  of  punishment  as  deter- 
mined by  the  law  or  the  judge,  but  in  its  administrative 
application,  and  that  a  theoretical  school  is  responsible  only 
for  the  code  and  for  its  influence  upon  the  judiciary  but  does 
not  control  the  administration  of  punishment.  Therefore 
it  is  not  the  penal  code  that  is  at  fault,  and  still  less  the 
judge  or  the  jury,  but  it  is  the  administration  of  the  pun- 
ishment. It  is  the  promiscuous  association  within  the 
prison,  the  contamination  of  its  communal  life,  and  the 

1  In  addition  to  the  striking  article  published  by  M.  FouilUe  in  the  Revue 
des  Deux  Mondes,  January  15,  1897,  see  the  chapters  by  M.  Henry  Joly  in 
"La  France criminelle,"  p.  164,  seq.,  p.  179,  seq.  (also  an  article  by  M.  FouilUe 
in  La  Revue  Bleue,  October  30,  1897).  Also  Joly,  "Le  Combat  centre  le 
crime,"  p.  156,  seq.,  p.  182,  p.  203,  seq.;  and  the  lecture  delivered  by  the 
latter  at  the  Young  Men's  Christian  Association  on  January  22,  1898,  on 
the  "Criminalite  de  la  jeunesse,"  published  in  the  Reforme  sociale,  1898, 
p.  433.  See  Eugene  Rostand,  "Pourquoi  la  criminality  monte  en  France  et 
baisse  en  Angleterre,"  in  the  Reforme  sociale,  pp.  345,  531,  585,  and  a  sup- 
plement in  the  same  review,  p.  850. 


106         INDIVIDUALIZATION  OF  PUNISHMENT        [§  36 

exposure  to  the  vices  of  humanity,  that  make  the  habitual 
criminal.  A  first  offender  introduced  to  this  environment 
becomes  the  companion  and  partner  of  the  most  corrupt 
among  the  corrupt,  and  inevitably  loses  the  last  remaining 
vestige  of  honor.  To  maintain  the  emotions  actively  effi- 
cient requires  the  support  of  an  environment;  they  live 
their  life  in  a  world  without,  as  well  as  within,  and  require 
an  external  influence,  either  of  social  intercourse  or  of  un- 
worldly communion  as  provided  by  religious  faith.  Direct 
personal  contact  is  essential.  The  man  who  shares  his  life 
with  degenerates  inevitably  assimilates  his  character  to 
theirs.  Moreover,  the  safeguard  of  morality,  especially 
where  its  survival  is  somewhat  uncertain,  is  the  sense  of 
personal  honor  and  esteem,  and  this,  in  turn,  depends  upon 
influences  of  social  origin.  It  consists  in  feeling  oneself  a 
member  of  a  larger  or  smaller  group,  of  a  human  community, 
accepted  by  it,  esteemed  by  it,  and  not  excluded  therefrom; 
it  is  the  feeling  of  forming  a  part  of  an  organism  and  re- 
flecting a  collective  consciousness;  in  default  thereof,  one 
drifts  to  the  outcasts.  Punishment,  through  its  discredit- 
ing stigma,  withdraws  the  criminal  from  the  group  of  the 
honest  and  sends  him  over  to  the  criminal  community.  It 
makes  him  a  man  dishonored  and  branded,  an  exile  from 
the  reputable  social  life.  Even  though  he  is  not  corrupt 
and  has  withstood  contamination  within  the  walls,  the 
prison  removes  him  from  the  class  of  the  honest.  The  only 
social  life  that  prison  affords  him  is  that  incorporated  in  a 
community  which  is  under  the  social  ban,  though  it  likewise 
has  its  social  organization.  He  belongs  to  them  and  there 
is  every  chance  that  he  will  remain  one  of  them  ;  and  thus 
is  the  recidivist  accounted  for.  The  fault  is  not  with  the 
legal  system  of  the  penal  code;  and  the  classic  school  is 
not  responsible  for  it.  The  fault  lies  in  the  administration 


§  37]  THE  ITALIAN  SCHOOL  107 

of  punishment  and  especially  in    the  promiscuous    associa- 
tion of  prison  life. 

§  37.  The  Solution  proposes  the  Personal  Consideration  of  the 
Offender  and  his  Social  Reinstatement 

To  remedy  this  defect  is  the  commendable  purpose  of 
the  penitentiary  school.  Its  most  distinguished  represent- 
atives, if  not  its  most  successful  results,  are  to  be  found 
in  France.  Its  adherents  are  many  and  especially  among 
the  representatives  of  the  bench.  Indeed,  the  interest 
and  the  generous  humanitarian  spirit  displayed  by  the 
French  judiciary  in  the  problems  of  punishment  and  in 
proposed  reforms  has  not  been  sufficiently  recognized.  The 
eager  and  earnest  desire  for  improvement  that  is  finding 
universal  support  cannot  be  too  cordially  acknowledged. 
Through  the  influence  of  this  movement  there  have  been 
inaugurated  prison  congresses  of  international  scope,  and 
these  serve  as  the  great  centers  of  interest,  which  in  turn 
stimulate  desirable  reforms.  To  it  also  is  due  the  French 
"Societe  generale  des  prisons,"  which,  in  its  field,  serves 
as  a  permanent  congress,  devoted  to  the  study  of  problems 
as  they  arise,  and  to  furthering  the  improvement  of  punitive 
treatment.  The  publication  of  its  "Bulletin"  is  a  means 
of  recording  and  popularizing  its  conclusions.  By  broad 
discussion  and  analysis  it  seeks  an  insight  into  problems 
and  prepares  the  way  for  legislative  enactments.  Its  ser- 
vices extend  beyond  France  to  all  countries  where  penology 
is  considered.  There  is  hardly  a  recent  European  criminal 
law  which  is  not  under  obligation,  for  its  form  as  well  as 
for  its  data,  to  the  "Revue  penitentiare  frangaise. "  The 
reforms  sought  by  this  large  penological  school  may  be 
reduced  to  two:  the  first,  the  segregation  of  the  condemned 
during  the  term  of  punishment  with  a  view  to  prevent  their 


108          INDIVIDUALIZATION  OF  PUNISHMENT        [§  37 

contamination  by  associates  and  to  facilitate  their  reform; 
and  the  second,  the  social  reinstatement  of  those  who  have 
served  their  term,  their  return  to  the  group  of  honest  men 
from  which  they  have  been  excluded,  with  the  purpose  to 
secure  their  readjustment  to,  and  their  participation  in, 
an  environment  of  work  and  an  honest  and  regular  life. 

We  thus  reach  the  conclusion  that  it  is  not  the  legal  but 
the  administrative  side  of  penal  legislation  that  is  in  need 
of  reform.  The  penal  code,  and  yet  more  clearly  the  crim- 
inal law,  need  not  be  disturbed;  it  is  the  manner  of  ad- 
ministering punishment  that  requires  modification.  Yet 
an  administrative  reform  is  not  adequate  to  bring  about 
a  proper  administration  of  punishment,  for  the  law  pre- 
scribes the  mode  of  administering  punishments.  Accord- 
ingly, in  this  respect,  the  penal  code  must  be  reformed. 
Possibly  it  will  be  sufficient  to  revise  some  of  its  articles; 
possibly  the  fundamental  principles  on  which  the  system 
of  the  penal  code  itself  is  based  must  be  modified.  This  is 
to  be  determined  by  the  penological  movement  itself.  For 
sooner  or  later  the  principle  advanced  by  this  school  must 
bring  about  a  reform,  not  alone  of  the  administration  of 
punishment  but  of  the  legal  system  of  its  individualization. 

This  does  not  imply  that  the  penological  school  has  ac- 
cepted the  principle  of  the  Italian  school.  Such  is  not  the 
case,  and  it  would  be  unjust  so  to  regard  it.  But  in  a  certain 
measure  the  two  are  in  accord  ;  unintentionally  the  one 
has  prepared  the  way  for  the  other.  It  may  be  interesting 
to  examine  the  common  ground  and  set  forth  the  points 
of  agreement  of  the  two  systems  which,  superficially,  seem 
inconsistent. 

Obviously  the  basis  of  the  theories  of  the  penological 
school  is  the  consideration  of  the  individual  temperament 
of  the  condemned.  When  sentence  has  been  passed  he 


§37]  THE  ITALIAN  SCHOOL  109 

must  at  once  be  treated  according  to  his  merits  rather  than 
according  to  the  crime.  The  crime  must  be  ignored  in  order 
the  better  to  see  the  man,  for  thus  only  is  reform  possible, 
and  the  purpose  of  the  penological  school  is  the  reform  of 
the  criminal.  Now  all  reform  comprises  two  functions  : 
the  negative  one  of  preservation,  consisting  in  this  case  in 
withdrawing  the  man  from  contaminating  influences,  and 
the  positive  one  of  reformation,  which  is  directed  to  the 
remoulding  of  the  moral  character.  Accordingly,  since  no 
education  is  possible  without  a  suitable  adaptation  of  the 
means  to  the  nature  and  character  of  those  concerned, 
the  punishment  must  be  adapted  to  the  temperament  of 
the  individual. 

It  must  not  be  inferred,  however,  that  the  penitentiary 
policy  is  to  be  confused  with  what  may  be  called  the  policy 
of  solitary  confinement.  The  fact  of  prolonged  segregation 
is  indeed  the  most  radical  and  the  most  primitive  method 
of  reformation,  but  it  is  also  the  least  adequate  means  of 
education.  If  education  through  punishment  is  to  consist 
in  fitting  the  prisoner  to  resist  the  temptations  of  environ- 
ment and  associates,  it  must  be  conceded  that  it  is  an  illogical 
measure  to  shield  him  from  every  temptation  and  to  with- 
draw him  wholly  from  social  life.  If  it  is  functioning  that 
develops  or,  at  all  events,  affects  the  organ,  it  is  a  strange 
procedure  that  in  order  to  prepare  the  organ  for  service  one 
should  deprive  it  of  opportunity  to  function.  Accordingly 
many  criminologists,  particularly  the  English,  believe  that 
solitary  confinement  for  long-term  punishments  has  only  a 
provisional  value,  that  of  getting  the  prisoner  to  realize 
his  situation  by  leaving  him  for  a  time  to  his  own  reflections. 
But  the  practice  must  not  be  abused.  To  effect  the  reform 
of  a  developing  character,  it  is  well  to  encourage  initiative. 
A  communal  life  is  not  to  be  feared  provided  that  it  is  prop- 


110         INDIVIDUALIZATION  OF  PUNISHMENT       [§37 

erly  safeguarded.  A  new  apprenticeship  of  life  must  be 
undertaken,  and  particularly  in  the  moral  sphere.  There 
should  be  no  hesitation  in  guaranteeing  a  properly  limited 
initiative  such  as  a  penal  regime  permits.  Yet  there  re- 
main the  difficulties  of  proper  safeguards.  These,  one  be- 
lieves or  hopes  to  find  in  a  system  of  successive  grades  of 
privilege.  According  to  the  behavior  of  the  prisoner  and 
the  progress  made,  he  passes  from  one  stage  to  another, 
and  by  a  system  of  gradual  reinstatement  he  reaches  his 
freedom,  —  that  is,  a  conditional  freedom  whenever  reform 
seems  assured.  The  progress  is  thus  tested  at  each  stage.1 
The  principle  involved  has  been  applied  in  the  Australian 
system  of  deportation.  It  was  devised  by  Walter  Crofton, 
and  was  first  applied  in  Ireland.  It  has  become  the  English 
penitentiary  regime  under  the  name  of  the  "progressive 
system."  This  system  of  progressive  promotion  may  be 
recommended  and  in  part  applied,  particularly  to  such  coun- 
tries as  ours  in  which  solitary  confinement  for  long-term 
sentences  is  not  in  vogue.  For  example,  it  would  be  readily 
adaptable  to  our  system  of  deportation.  The  basis  of  the 
system  of  our  law  of  1854  (on  the  administration  of  penal 
servitude  in  the  Colonies)  is  the  progressive  English  system. 
Thus  a  first  attempt,  although  a  crude  one,  must  here  be  rec- 
ognized in  the  adjustment  of  punishment  to  the  progressive 
improvement  of  the  individual. 

The  present  demand  is  for  the  perfection  and  extension 
of  the  practice  now  crudely  and  indiscriminately  applied 
to  sentences  of  penal  servitude.  It  has  been  urged  that 
the  system  be  extended  to  the  penitentiaries;  and  M.  Le- 
veille  has  urged  its  application  to  the  military  company 

1  For  details  see  Aschrott,  "  Straf ensystem  und  Gefangniswesen  in  Eng- 
land," p.  50,  jaeq.,  p.  70,  seq.,  and  particularly  p.  181,  seq.,  and  195,  seq.  Also 
Krohne,  "Lehrbuch  der  Gefangniskunde,"  §  10. 


§38]  THE  ITALIAN  SCHOOL  111 

known  as  the  African  Battalions,  to  which  are  sent,  at  the 
time  of  their  enlistment,  young  recruits  who  have  already 
undergone  certain  special  sentences.  In  its  detail  the  plan 
presents  some  difficulties  of  application,  but  the  principle 
is  clear.1  It  is  the  principle  of  classification  or  gradation 
according  to  the  presumptive  degree  of  morality.  Unques- 
tionably the  practice  involves  a  considerable  inequality 
in  the  administration  of  punishment,  yet  an  inequality  that 
is  beneficent  and  strictly  humane  and  just.  Moreover  it 
is  an  inequality,  as  explained  above,  in  which  is  considered 
not  the  crime  committed  and  its  social  gravity,  but  the  moral 
status  of  the  individual  and  the  prospects  of  reinstatement 
of  which  he  gives  promise. 

§  38.   Gradation  by  Presumptive  Morality  and  Good  Conduct 
of  Offenders :  Protest  against  Promiscuous  Association 

Admittedly  this  seems  to  distort  and  confuse  the  issues. 
The  kind  of  individualization  just  mentioned  is  to  be  applied 
only  in  the  administration  of  the  punishment  and  in  con- 
formity with  the  progressive  improvement  of  the  con- 
demned. A  premium  is  placed  upon  the  good  conduct  of 
the  prisoner,  and  he  is  encouraged  to  exert  himself,  and 
accordingly  to  further  his  own  moral  advancement.  Such 
individualization  is  not  determined  by  the  judicial  sentence 
at  the  time  of  condemnation,  when  an  attempt  is  made  to 
select  a  punishment  in  terms  of  the  individual  and  not  of 
the  crime.  It  is  not  an  initial  decision  made  at  the  outset 
and  before  the  administration  of  the  punishment  has  re- 
vealed the  nature  of  the  individual  committed  to  its  charge; 

1  See  the  report  of  M .  Leveille  to  the  Soci6t£  generale  des  prisons  (Revue 
penitentiaire,  1896),  p.  1007,  seq.,  p.  1199;  and  the  plan  of  M.  Leveiltt  in  the 
same  review,  p.  1217,  and  in  the  Revue  penitentiaire,  1897,  p.  519.  Also  the 
proposal  of  M.  Pierre  Richard  at  the  meeting  on  December  2,  1897  (Revue 
penitentiaire,  1898,  p.  145). 


112          INDIVIDUALIZATION  OF  PUNISHMENT        [§38 

it  is  a  re-classification  made  after  the  sentence,  and  during 
the  execution  of  the  punishment,  and  based  upon  the  pro- 
gressive improvement  of  the  prisoner.  It  thus  bears  but 
indirectly  upon  the  principle  of  uniformity  and  equality 
of  punishments  ;  for  since  it  puts  a  premium  upon  good 
conduct,  all  may  merit  and  attain  it.  It  is  made  a  part  of 
a  generally  applicable  discipline.  The  principle  of  equality 
before  the  law  remains  secure,  and  this  is  one  of  the  most 
inalienable  principles  of  our  criminal  law.  The  individual- 
ization  made  after  the  sentence  and  in  course  of  punishment 
and  under  the  form  of  progressive  promotion  by  reason  of 
the  good  conduct  of  the  condemned  does  not  constitute 
an  exception  thereto. 

But  the  penological  school  is  not  content  with  this  belated 
individualization  reached  in  course  of  punishment  but  per- 
mitting an  initial  promiscuous  association  of  all  condemned 
to  the  same  discipline.  For  this  period  may  permanently 
contaminate,  or  at  least  expose  to  the  worst  influences,  such 
of  its  unfortunate  victims  as  retain  a  vestige  of  virtue,  who, 
though  guilty  of  an  isolated  infraction,  have  not  lost  the 
sense  of  right  and  wrong.  By  the  logic  of  its  principles 
the  penological  school  opposes  such  conditions.  In  the 
absence  of  solitary  confinement,  and  at  all  events  as  a 
subsidiary  measure,  it  urges  a  preliminary  segregation  of 
prisoners.  It  proposes,  for  example,  instead  of  a  sepa- 
ration in  different  quarters  within  the  same  reformatory 
institution,  —  a  separation  which  is  never  complete,  —  a 
definite  assignment  of  different  groups  of  offenders  to  dif- 
ferent reformatory  institutions.  In  this  way  the  offender, 
from  the  beginning  of  his  punishment  and  according  to  the 
character  which  he  presents,  would  be  sent  to  an  appropriate 
institution  and  placed  in  an  appropriate  group  with  his  equals, 
that  is,  with  persons  of  an  approxminately  similar  morality. 


§  38]  THE  ITALIAN  SCHOOL  113 

The  French  law  of  1875,  on  the  partial  application  of 
solitary  confinement  as  applied  to  those  committed  for 
more  than  a  year  to  penitentiaries  with  their  promiscuous 
associations,  grants  a  possible  conversion  of  the  punish- 
ment, in  response  to  a  request  for  a  change  of  discipline. 
Such  prisoners  are  allowed  upon  request,  even  from  the 
beginning  of  then*  sentence,  to  serve  their  time  in  solitary 
confinement  ;  and  M.  Leveille,  whose  scheme  of  reorgan- 
ization of  the  African  Battalions  has  already  been  referred 
to,  asks  the  like  privilege  for  certain  types  of  convicts,  so 
that  instead  of  serving  their  time  in  jail  they  may  be  per- 
mitted to  serve  a  double  or  even  a  triple  period  in  the  colo- 
nial military  service,  and  thereby  earn  their  reinstatement 
and  pay  their  debt  to  society.1  This  amounts  to  a  method 
of  individualization  from  the  very  outset  of  the  punish- 
ment, —  an  initial  segregation  into  different  groups  of  the 
condemned,  applied  administratively  in  place  of  judicially. 

A  provision  of  this  type  appears  in  the  application  of  the 
law  of  1885  on  the  deportation  of  recidivists.  Our  colonial 
arrangements  provide  two  forms  of  deportation:  the  one 
involving  a  true  penitentiary  discipline  in  the  colony,  and 
the  other  assigning  a  discipline  in  freedom  or  in  partial 
freedom.  Upon  the  rendering  of  the  sentence  an  admin- 
istrative commission  in  Paris  passes  upon  the  classification 
of  the  deported  into  one  or  the  other  of  the  two  forms  of 
deportation;  and  it  does  so  without  considering  the  crime 
committed. 

Such  provisions  indicate  a  tendency  to  make  the  indi- 
vidualization an  initial  one  in  terms  of  the  individual,  and 
not  a  progressive  adjustment  according  to  his  behavior 
during  the  course  of  punishment.  By  such  a  procedure 
the  worth  of  the  individual  may  be  considered  at  the  outset, 
1  See  Revue  penitentiaire,  1897,  p.  513,  seq. 


114         INDIVIDUALIZATION  OF  PUNISHMENT       [§39 

even  at  the  moment  when  sentence  is  passed;  according 
to  his  character,  his  environment,  and  his  antecedents,  a 
suitable  regime  of  punishment  may  be  arranged.1 

Such  measures  are  at  present  carried  out  through  the 
channels  of  administration,  without  legal  or  judiciary  war- 
rant. Is  there  any  reason  for  not  assigning  to  the  judge 
the  duty  of  making  this  first  individualization,  when  it  may 
be  determined  under  the  influence  of  the  facts  given  in  the 
evidence,  the  impression  produced  upon  the  hearers,  and 
the  important  guarantee  of  publicity?  The  individualiz- 
ation is  thus  determined  openly  rather  than  through  the 
variable  influences  to  which  administrative  procedures  are 
subject. 

§  39.  Criticism  of  the  Position :  its  Basis  in  Law  and  in 
Public  Opinion 

The  principle  of  the  penological  school  has  as  its  neces- 
sary consequence  the  substitution  of  the  consideration  of 
the  criminal  for  the  exclusive  consideration  of  the  crime. 
The  Italian  school  makes  the  same  demand  ;  the  form  of 
its  demands  and  their  acceptability  remain  to  be  examined. 

Before  taking  up  this  point  let  us  review  the  conclusions 
reached.  In  the  first  place  it  appears  that  the  classic  school 
is  condemned  by  its  practical  results.  Yet  in  justice  some 
reservation  of  this  verdict  must  be  made  and  certain  ob- 
jections met.  The  criticisms  set  forth  that  the  fault  lies 
in  the  administration  of  punishment  and  not  in  the  judiciary 
system;  the  principle  of  legal  and  judicial  equality  of  pun- 
ishment remains  secure.  Admittedly  if  there  is  anything 

1  This  argument  applies  with  greater  force  to  the  system  of  parole,  or, 
properly  speaking,  of  pardon,  which  is  a  matter  presently  to  be  considered 
in  our  penal  legislation,  under  the  name  of  the  law  of  pardon.  On  this  sub- 
ject see  M.  Octave  Aubry,  "  L'indulgence  et  la  loi"  (Paris,  Libraire  gen6rale 
de  droit  et  de  jurisprudence,  1908).* 


§  39]  THE  ITALIAN  SCHOOL  115 

awry  in  penology  it  is  the  mode  of  administration  of  pun- 
ishment, and  it  is  here  that  the  remedy  is  to  applied.  We 
have  come  to  realize  that  the  remedy  can  be  effective  only 
by  abandoning  the  initial,  that  is,  the  judicial  equality  of 
punishment,  by  adapting  the  punishment  through  the 
judiciary  procedure  to  the  individual  rather  than  to  the 
crime.  The  idea  that  for  the  same  crime  there  must  be 
imposed  a  punishment  alike  in  nature  and  equal  in  duration 
is  indeed  no  longer  tenable.  To  recognize  that  existing  con- 
ditions can  be  remedied  only  by  beginning  at  this  point, 
is  to  admit  that  the  whole  system,  or  much  of  it,  must  be 
reformed,  that  its  foundations  must  be  reconsidered.  In- 
deed the  basis  of  the  classic  system  is  most  uncertain.1  Such 
is  the  state  of  the  problem.  It  is  in  presence  of  this  situ- 
ation and  of  results  unfavorable  to  the  dominant  school 
that  the  Italian  school  has  come  forward.  Let  us  see  what 
it  proposes  to  accomplish. 

The  position  of  the  Italian  school  may  be  reduced  to  a 
very  simple  formula;  it  proposes  a  system  of  applied  soci- 
ology based  upon  determinism  and  accepting  it  as  its  guiding 
principle.  Whatever  in  this  position  does  not  come  directly 
from  sociology  is  but  a  slightly  disguised  deduction  there- 
from. Sociology  primarily  observes  and  determines  facts,  ac- 
cepts principles  established  by  historical  experience,  which 
in  turn  form  the  basis  of  the  laws  of  social  psychology. 
Now  among  these  principles,  which  lie  at  the  base  of  public 
sentiment,  there  are  some  that  remain  secure  despite  the 
passing  of  philosophies  and  the  disappearance  of  creeds  ; 

1  Moreover,  whenever  the  advocates  of  the  classic  school  agree  and  are 
disposed  to  record  their  opinion  on  the  subject  of  the  operation  of  the  actual 
system,  they  testify  that  it  is  disastrous  and  leads  to  unfortunate  conse- 
quences. See,  in  reference  thereto,  an  especially  instructive  discussion  at 
the  Societd  generate  des  prisons,  on  the  "Suppression  of  Vagabondage," 
March  16,  1898.  Revue  penitentiaire,  April,  1898. 


116         INDIVIDUALIZATION  OF  PUNISHMENT       [§40 

such  is  the  belief  in  responsibility,  and,  however  vague,  the 
conception  of  moral  freedom.  It  is  upon  them  that  the  uni- 
versal distinction  is  made  between  the  repressive  measures 
applied  to  criminals  and  the  purely  preventive  measures 
taken  against  the  insane.  The  criminologist,  especially 
if  he  is  also  a  sociologist,  must  take  account  of  these  sen- 
timents and  of  their  reaction  upon  criminology.  A  system 
of  punishment  that  disregards  them  would  so  conflict  with 
popular  sentiment  as  to  be  thoroughly  impracticable.  To 
construct  a  criminology  as  an  abstract  system,  without 
considering  the  popular  collective  consciousness,  would  be 
to  follow  the  plan  of  Sieyes  in  his  construction  of  political 
constitutions.  Such  philosophical  dogmatism  has  had  its 
day. 

§  40.  Purpose  and  Effect  of  Punishment :  Consequent  Status 

of  Crime 

Now  let  us  consider  the  proposals  of  the  Italian  school 
and  the  necessary  logical  conclusions  to  which  it  is  com- 
mitted. Man  cannot  control  the  direction  of  his  impulses 
or  of  his  moral  propensities.  According  to  Lombroso  crime 
is  the  inevitable  issue  of  a  pathological  temperament,  and 
according  to  Ferri  it  is  a  result  of  the  social  environment 
and  economic  conditions  governing  human  existence.  Hence 
punishment  can  have  no  social  status  either  as  a  penalty 
or  as  disapproval.  Atonement  can  be  exacted  only  for  a 
wrong  which  one  was  free  to  avoid,  and  reproof  can  be  de- 
manded only  for  evil  issuing  from  an  act  of  free  will.  Pun- 
ishment is  only  a  means  of  public  defense  and  security, 
analogous  to  the  preventive  measures  taken  against  danger- 
ous animals  or  insane  men.  Moreover  there  are  no  repres- 
sive measures;  there  are  only  measures  of  prevention  to 
check  the  repetition  and  dissemination  of  crime.  What 


§40]  THE  ITALIAN  SCHOOL  117 

is  dangerous  in  the  criminal  and  makes  him  a  menace  to 
society  is  not  the  crime  once  committed  but  the  criminal 
himself  :  his  personality,  his  temperament,  ever  leading 
him  to  further  crime  ;  the  latent  fundamental  impulses 
which,  when  acted  upon  by  circumstance,  may  break  out 
into  murder,  theft,  or  offenses  against  morality.  How  is 
society  affected  by  the  punishment  of  the  crime  or  the 
failure  to  punish  it?  The  evil  done  belongs  to  the  past. 
Nothing  remains  but  to  repair  the  injury  inflicted  it  this 
be  possible.  The  greater  concern  is  to  prevent  crime  in 
the  future;  and  for  this  the  criminal  instinct  in  the  crim- 
inal must  be  checked  or  suppressed,  or  if,  as  is  most  com- 
monly the  case,  such  a  prospect  seems  unrealizable,  it  is 
the  criminal  himself  who  must  be  disposed  of,  as  would  be 
done  in  the  case  of  a  plague  or  a  dangerous  animal.  It  is 
with  reference  to  his  evil  potentiality,  to  the  dread  that  he 
arouses  (which  the  Italians  call  La  temibilita,  the  formid- 
ability  of  the  offender)  that  prospective  measures  must  be 
framed.  They  must  be  directed  to  reform  in  so  far  a*  any 
measure  of  improvement  yet  remains  possible,  or,  if  none 
is  possible,  to  elimination.  Such,  approximately,  is  the 
logical  position  of  the  Italian  school. 

In  this  view  the  crime  committed  has  an  altogether  dif- 
ferent status  from  that  assigned  to  it  by  the  classic  school. 
It  is  no  longer  the  fixation  point  of  punishment;  it  ceases 
to  be  the  punishable  factor.  The  older  view  recalls  the 
primitive  theory  of  the  right  of  vengeance;  as  though  one 
turned  against  the  author  of  the  injury  to  make  him  ex- 
piate it  by  subjection  to  punishment.  Crime  has  no  status 
except  as  a  symptom  of  the  criminal  instinct  of  the  agent, 
as  an  indication  of  his  dangerous  character.  There  are  no 
punishable  actions,  only  individuals  to  be  placed  beyond  the 
range  of  doing  harm;  and  crime  serves  to  identify  them. 


118         INDIVIDUALIZATION  OF  PUNISHMENT       [§41 

Crime  has  a  purely  symptomatic  value.  The  record  and 
the  appearance  of  the  criminal,  to  speak  in  the  spirit  of  the 
system,  are  to  be  substituted  for  that  legal  entity  known 
as  crime.  The  catalogue  of  crimes  is  to  be  replaced  by  a 
classification  of  criminals.  Instead  of  adjusting  the  pun- 
ishment to  the  presumed  gravity  of  the  offense,  it  must  be 
adjusted  to  the  nature  of  the  criminal.  It  is  not  of  crime 
but  of  criminality  that  we  are  to  speak;  and  the  one  is  by 
no  means  the  evidence  of  the  other.  The  one  is  a  fact,  and 
the  other  a  psychological  factor.  The  two  conceptions  are 
not  necessarily  identical.  Criminality  always  breeds  crime, 
but  crime  is  not  always  the  issue  of  criminality.  The  legal 
system  is  wrong  in  associating  the  two.  Every  truly  scien- 
tific system  must  clearly  distinguish  between  them. 

§  41.  The  Types  of  Criminals  and  their  Individualized 
Treatment 

Henceforth  criminals  must  be  separated  into  two  mu- 
tually exclusive  groups:  those  amenable  to  improvement, 
and  those  who  are  not.  The  latter,  the  refractory  to  pun- 
ishment, the  incorrigible,  form  the  group  that  cannot  be 
assimilated  and  made  part  of  the  social  life.  There  is 
nothing  to  be  done  but  to  place  them  beyond  the  possibility 
of  doing  harm,  to  suppress,  or  to  eliminate  them.  The 
former  are  to  be  carefully  studied  and  assigned  to  appro- 
priate groups,  for  though  presumably  amenable  to  regener- 
ation, they  may  not  be  responsive  to  the  same  measures. 
If,  as  Lombroso  holds,  crime  is  primarily  a  pathological 
phenomenon,  punishment,  or  what  will  still  bear  the  name, 
must  be  adjusted  to  the  type  of  disorder  or  criminal  disease 
which  is  to  be  cured;  and  this  brings  us  to  the  theory  of 
penal  individualization  in  the  true  and  proper  sense  of  the 
word.  Such  individualization  will  no  longer  consider  the 


§41]  THE  ITALIAN  SCHOOL  119 

crime  committed;  it  will  even  disregard  the  degree  of  re- 
sponsibility, for  responsibility  bears  upon  the  accountability 
towards  a  particular  action,  which  is  not  here  pertinent. 
Such  individualization  will  consider  the  true  nature  of  the 
individual,  his  latent  and  potential  criminality,  and  will 
seek  to  adjust  the  punishment  to  the  requirements  of 
moral  improvement  which  each  criminal  presents.  Such 
is  the  new  individualization  proposed  by  the  Italian 
school. 

Surely  this  type  of  individualization  has  great  merit; 
and  further  progress  must  be  directed  to  its  practical  ex- 
tension. Yet  what  may  almost  be  called  deterrent  in  the 
Italian  school  is  its  formal  reasoning,  its  radical  and  in- 
sistent logical  position  ;  here,  as  elsewhere  in  the  field  of 
law,  there  is  a  natural  recoil  from  the  rigid  logical  attitude. 
It  needs  no  further  insistence  that  logic  may  perhaps  pro- 
duce revolutions,  for  it  may  express  the  simple  conviction 
of  the  masses  and  the  psychology  of  the  crowd;  yet  unques- 
tionably society  in  a  normal  condition  does  not  proceed 
by  logic  but  by  something  quite  different.  It  lives  upon 
realities  which  are  complex,  and  the  complexity  of  the  fric- 
tion of  diverse  interests  and  their  final  issue  is  something 
decidedly  opposed  to  the  straight  lines  and  regular  contours 
of  logic.  Reality  disturbs  the  outline.  It  is  the  spirit  of 
abstraction,  of  dogma,  or  of  radicalism  (which  amounts  to 
the  same  thing),  that  attempts  to  mould  a  structure  as  a 
whole  and  to  hold  it  inviolable. 

The  logical  principles  of  the  Italian  school  lead  to  two 
conclusions:  first,  to  hold  exempt  from  punishment  many 
guilty  of  crime;  and  secondly,  its  converse,  to  punish  in  ad- 
vance some  who  have  not  as  yet  committed  crime.  This 
makes  two  new  classes  of  criminals:  the  one,  the  not-to-be- 
punished  criminal,  or  the  group  of  pseudo-criminals;  and 


120         INDIVIDUALIZATION  OF  PUNISHMENT       [§41 

the  other,   those  to  be  punished  without  having  become 
criminals,  or  the  group  of  suspects. 

Let  us  consider  the  first  group,  the  pseudo-criminals, — 
and  fortunately  for  mankind  they  are  still  very  numerous. 
It  includes  first  offenders  whose  crime  was  but  an  irregular 
incident,  who  have  been  tempted  to  abuse  the  confidence 
placed  in  them,  or  even  to  commit  a  serious  crime,  under 
conditions  in  which  their  true  nature  did  not  prevail.  Such 
crimes  might  indicate  that  they  did  not  as  yet  possess  the 
criminal  impulse  ;  but  that  imprisonment  might  develop 
it.  Their  character  is  not  yet  involved.  Punishment  is 
altogether  unnecessary  as  a  preventive  for  further  misdeed 
and  may  prove  a  menace.  There  is  no  abnormality  to  be 
cured,  no  disposition  to  be  reformed;  at  most  there  is 
needed  a  break  from  the  old  habits  or  a  change  of  environ- 
ment. What  good  will  punishment  do?  What  we  call  pun- 
ishment has  no  longer  the  function  of  chastisement,  that 
is,  hi  reference  to  the  evil  committed,  but  its  function  is  to 
prevent  evil  in  the  future  by  cure  of  elimination,  and  that 
is  not  here  relevant.  There  is  nothing  to  be  cured  and  still 
less  to  be  eliminated.  Punishment  would  be  useless  and 
therefore  unjust.  Such  are  the  characteristics  of  the  pseudo- 
criminals  or  of  the  fictitious  criminals  who  are  not  to  be 
punished.  It  is  thus  made  clear  that  a  distinction  must 
carefully  be  drawn  between  the  external  appearance  of 
criminality  and  that  which  alone  is  significant,  an  inherent 
criminality.  The  former  is  a  superficial  phenomenon;  it 
is  revealed  hi  an  external  act  in  which  it  is  embodied  and 
made  manifest.  Shall  it  be  regarded  as  an  index  of  the  true 
criminality  that  discloses  the  intimate  character?  The 
reply  cannot  be  determined  in  advance.  The  crime  may  be 
an  acute  crisis,  quite  incidental  and  transitory,  without 
likelihood  of  a  disastrous  return.  The  true  criminality 


§  41]  THE  ITALIAN  SCHOOL  121 

against  which  measures  must  be  taken  is  chronic  criminality, 
the  issue  of  fundamental  character  which  at  any  time  may 
express  itself  in  criminal  action.  Hence  we  should  put  in 
a  group  by  themselves  criminals  who  lack  such  inherent 
criminality;  they  show  the  phenomenon  of  criminality  but 
no  natural  criminal  tendency.  They  are  criminals  only  in 
the  eyes  of  the  law. 

The  second  group  forms  a  serious  problem.  Here  belong 
cases  of  natural  criminality  not  yet  expressed  in  legal  crim- 
inality, —  an  inherent  and  demonstrated  criminal  tendency 
that  has  not  as  yet  issued  in  crime.  The  group  includes 
such  as  should  be  liable  to  punishment  without  having 
become  criminals;  in  other  words,  those  who  are  the  ob- 
jects of  suspicion.  If  society  is  to  be  defended  against  future 
crime,  then,  obviously,  society  must  take  possession  of  the 
criminal  before  he  commits  his  crime.  When  a  house  threat- 
ens to  fall  and  is  a  menace  to  passers-by,  one  does  not  delay 
its  repair  until  an  accident  has  occurred.  Similarly  in  deal- 
ing with  the  insane  who  threaten  to  become  dangerous,  — 
they  are  confined  before  they  cause  disaster.  When  an 
animal  is  suspected  of  having  an  affection  that  may  prove 
a  source  of  danger  to  others,  it  is  confined  or  killed,  even 
before  the  contagion  breaks  out.  Why  hesitate  to  segregate 
the  instinctive  criminal,  born  and  reared  in  vice,  and  inca- 
pable of  assimilation?  He  was  not  made  for  a  social  life,  and 
social  life  was  not  made  for  him.  Why  delay  self -protection 
until  the  career  of  misdeed  has  begun?  Such  might  be  the 
only  available  procedure  if  crime  were  the  sole  expression 
of  the  criminal,  but  it  is  sufficiently  obvious  that  there  are 
many  other  symptoms  of  the  criminal  temperament.  A 
man  becomes  a  member  of  a  gang  ;  he  is  a  vicious  fellow, 
destitute  of  all  moral  sense;  he  pursues  most  suspicious 
ways;  he  has  no  scruples  of  conscience;  the  very  idea  of  a 


122         INDIVIDUALIZATION  OF  PUNISHMENT       [§42 

moral  conscience  is  foreign  to  him  ;  his  past,  his  education, 
his  environment  answer  for  the  future.  From  the  patho- 
logical point  of  view  he  has  all  the  signs  of  the  criminal.  He 
is,  to  all  intents,  a  thief  who  has  not  yet  picked  a  pocket; 
or  a  murderer,  by  impulse  violent,  brutal,  and  cruel,  who, 
on  slight  provocation,  will  inevitably  go  to  the  extreme. 
Why  not  anticipate  the  execution  of  a  possible  crime?  If 
punishment  itself  is  not  to  be  resorted  to,  there  are  at  all 
events  protective  measures  to  be  pursued  and  definite  steps 
to  be  taken.  It  is  not  wise  to  wait  passively  until  a  victim 
is  found.  When  once  a  crime  is  committed,  punishment 
becomes  a  means  of  defense  to  prevent  the  repetition  of  the 
crime;  so  much  the  more  should  it  be  a  measure  of  pre- 
vention of  the  first  crime. 

To  the  two  groups  composing  the  preliminary  classifica- 
tion of  criminals,  two  others  are  thus  to  be  added:  the 
class  of  criminals  in  advance  of  the  crime  or  criminals  by 
suspicion,  and  the  class  of  pseudo-criminals.  In  the  former 
there  is  a  criminal  but  no  crime;  in  the  latter,  a  crime  but 
no  criminal.  To  reach  a  precise  individualization  in  accord 
with  the  principles  of  the  system,  four  varieties  must  be 
recognized :  —  the  criminals  by  suspicion  who  have  given 
proof  of  their  criminality  without  committing  a  crime;  the 
criminals  lacking  criminality,  perpetrators  of  crime  who  are 
however  not  criminal  in  nature;  the  criminals  combining  crime 
and  criminality,  but  incorrigible;  and  lastly,  the  entire  class 
of  criminals  (with  the  considerable  variety  of  sub-classes, 
which  it  includes)  who  have  shown  at  once  their  participation 
in  crime  and  in  criminality  but  are  susceptible  to  treatment. 

§  42.  Difficulties  attaching  to  the  Position  of  Lombroso 

The  serious  point  in  the  system  of  individualization  in 
precise  conformity  with  the  principles  of  the  Italian  school 


§42]  THE  ITALIAN  SCHOOL  123 

is  the  admission  of  the  first  two  groups,  the  criminals  by 
suspicion  and  the  fictitious  criminals,  the  former  being 
guilty  only  of  criminality  but  not  of  crime,  and  the  latter 
guilty  of  crime  but  not  of  criminality.  That  the  two  con- 
ceptions have  a  different  range  of  application  cannot  be 
questioned. 

Preventive  measures  that  shall  place  the  criminal  under 
the  power  of  the  law  before  the  commission  of  the  crime 
involve  the  detection  and  treatment  of  suspects.  Yet,  how- 
ever solicitous  one  may  be  for  the  social  safety,  it  is  far 
better  to  run  the  risk  of  having  thefts  or  other  crimes  com- 
mitted, than  to  condemn  any  and  every  man  on  the  basis 
of  his  features  —  merely  because  nature  has  given  him  a 
jaw,  a  lip,  or  a  skull  that  corresponds  to  one  of  Lombroso's 
criminal  types.  In  the  life  of  society,  as  elsewhere,  there 
are  always  risks  to  be  run;  one  must  learn  how  to  accept 
them  and  to  find  wherein  lies  the  least  social  risk.  If  through 
fear  of  crime  men  are  deprived  of  liberty,  where  is  the  ad- 
vantage? Society  must  guarantee  not  alone  life  and  prop- 
erty but  also  the  means  of  enjoying  them.  If  to  secure  life 
and  property  the  chance  is  incurred  of  losing  the  possibility 
of  enjoying  them  freely,  the  social  risk  incurred  is  quite  as 
serious  as  that  of  the  dangers  that  threaten  us  individually. 
Against  the  latter  one  may  with  proper  caution  come  to 
protect  himself;  against  the  danger  of  an  arbitrary  author- 
ity in  the  hands  of  the  State  or  the  police,  one  is  helpless. 
Such  policy  is  followed  by  individuals  without  initiative 
or  courage,  and  by  decadent  peoples.  Therefore  let  us  be- 
ware of  introducing  a  system  based  upon  suspicion,  which,  in  its 
endeavors  to  pro  vide  complete  security,  constantly  exposes  men 
to  the  serious  danger  of  an  accusation  upon  appearance  alone. 

But  no  less  serious  is  the  alternative  that  no  punishment 
should  be  imposed  if  the  author  of  the  crime  happens  to  be 


124         INDIVIDUALIZATION  OF  PUNISHMENT       [§42 

an  ordinary  individual,  whom  nature  has  neglected  to  brand 
with  the  pathological  marks  that  reveal  the  criminal.  Even 
though  there  were  an  infallible  means  of  recognizing  the 
criminal  by  accident,  —  the  man  at  bottom  honest  but  mo- 
mentarily led  astray  or  taken  unawares,  who  is  not  at  all 
liable  to  a  further  relapse  in  the  future,  —  the  interests  of 
public  morality  will  hardly  sanction  the  example  of  such 
patent  of  immunity  in  cases  of  grave  offenses  that  do  vio- 
lence to  public  sentiment;  for  the  public  conscience  would 
thus  lose  the  right  to  condemn,  because  the  justice  by  which 
it  is  represented  considers  that  it  ought  not  to  interfere.  Shall 
murders,  thefts,  violations  of  trust,  and  other  serious  crimes 
be  regarded  as  in  themselves  of  slight  significance  and  as 
morally  of  no  different  status  than  any  other  act  expressive 
of  an  individual's  true  character?  In  that  event  a  suspicious 
appearance  would  be  more  indicative  of  criminality  than 
the  actual  brutal  assault  upon  a  victim.  The  indignation 
of  the  people  and  their  stern  disapproval  of  criminal  actions 
would  be  out  of  place.  It  is  cowardly  and  stupid  fear  that 
makes  one  believe  that  he  is  threatened,  and  makes  one 
turn  against  a  suspected  enemy,  for  who  knows  where  the 
enemy  is  to  be  found?  Is  it  the  man  who  plans  murder,  or 
the  one  who  seeks  vengeance  against  the  murderer?  The 
public  cannot  decide,  and  necessarily  turns  to  doctors  and 
specialists  who  must  detect  the  criminal  by  pathological 
symptoms,  and  then  place  him  under  surveillance.  The 
realization  of  crime  becomes  only  the  most  terrifying  but 
not  the  most  convincing  symptom  of  crime.  The  indigna- 
tion aroused  by  the  crime  is  an  unworthy  sentiment  due 
to  fear  or  ignorance.  Such  appears  to  be  the  logical  con- 
sequence of  this  position.  If  it  should  ever  be  adopted, 
which  is  hardly  likely,  it  would  destroy  the  last  safeguard 
of  human  nature  and  of  common  manhood. 


§43]  THE  ITALIAN  SCHOOL  125 

§  43.   A  Third  Italian  School 

In  view  of  these  serious  consequences  there  has  arisen 
an  intermediate  position,  which  presents  the  same  point 
of  departure  and  follows  a  like  determinism,  but  has  as  its 
chief  purpose  to  restore  to  punishment  its  traditional  char- 
acter and  classic  function.  This  composite  school  likewise 
finds  its  principal  contributors  in  Italy,  and  has  been  given 
the  name  of  "La  Terza  Scuola"  (the  Third  School).1  Its  posi- 
tion is  centered  about  the  psychological  effect  of  punish- 
ment ;  it  aims  to  justify  the  retention  of  its  traditional 
function,  that  of  intimidation  and  of  the  prevention  of  crime 
by  its  effect  upon  others.  Thus,  in  punishing  a  pseudo- 
criminal  as  soon  as  a  crime  has  been  committed,  it  inter- 
venes to  teach  a  lesson  to  such  as  might  be  tempted  to  follow 
his  example,  were  immunity  from  punishment  assured.  This 
is  the  principle  of  intimidation  and  example.  Alimena,  a 
leading  exponent  of  this  school,  emphasizes  this  function 
as  the  essential  and  distinctive  characteristic  of  punish- 
ment, by  which  it  differs  from  the  preventive  measures 
taken  against  the  insane.  It  may  perhaps  be  doubted 
whether  it  is  possible  to  influence  the  future  conduct  of  an 
insane  man  by  holding  up  an  example.  It  is  evident  that 
the  psychological  effect  of  punishment  does  not  react  upon 
other  insane  persons.  They  are  immune  to  such  intimi- 
dation by  example.  In  this  respect  punishment,  in  so  far 
as  its  psychological  effects  are  concerned,  whether  upon 
individuals  or  upon  groups,  is  essentially  different  from 

1  Principally  Carnevale  and  Alimena.  See  E.  Carnevale,  "Delia  pena 
nella  scuola  classica  e  nella  criminologia  positiva  e  del  suo  fondamento  ra- 
zionale";  and  B.  Alimena,  "Naturalismo  critico  e  diritto  penale  "  (1892); 
this  is  reproduced  in  "I  limiti  e  i  modificatori  dell'  imputabilita "  (Vol.  I, 
1894,  in  the  Introduction).  See  Vargha,  "Die  Abschaffung  der  Strafknecht- 
schaft"  (Graz,  1896),  I,  p.  216. 


126         INDIVIDUALIZATION  OF  PUNISHMENT       [§43 

the  precautionary  measures  exercised  with  reference  to  the 
insane. 

But  this  school  upholds  not  alone  the  restoration  of  the 
psychological  function  of  punishment  as  an  example  but 
its  popular  function  in  accord  with  public  opinion.  In  this 
respect  it  is  most  appropriately  called  the  historical  school 
rather  than  by  its  preferred  name  of  the  critical  school.1 
For  what  is  distinctive  of  an  historical  school  is  its  allegiance 
to  the  evolution  of  thought,  yet  not  uncritically  but  in  a 
spirit  of  thorough  conformity  to  equity  as  embodied  in  the 
law  and  also  to  the  sense  of  justice  as  embodied  in  the  public 
conscience.  It  is,  then,  wholly  unwarranted  to  neglect  the 
popular  sentiment  that  attaches  a  public  disapproval  to 
crime,  a  sentiment  that  may  be  quite  unjust  if  crime 
is  really  the  inevitable  result  of  an  all-conditioning  deter- 
minism, but  a  sentiment  which  the  criminal  law,  even  in 
that  event,  must  formally  recognize.  If  this  were  not  the 
case  public  morality  would  be  endangered,  —  a  very  serious 
matter  for  social  security.  This  does  not  imply  the  im- 
possibility of  conceiving  a  social  morality  independently 
of  the  conception  of  freedom,  which  is  the  traditional  basis 
of  penalty,  but  such  a  conception  is  confined  to  a  small 
coterie  of  astute  philosophers,  such  as  Guyau,  with  a  nice 
and  discerning  sense  of  analysis  and  a  distinctive  nobility 
of  sentiment.  Yet  it  may  be  admitted  that  this  conception 
might  be  popularized  and  enter  into  the  consciousness  of 
the  masses,  if  it  could  be  freed  from  the  purely  philosophical 
status  that  men  like  Guyau  give  it,  or  the  too  exclusively 
sociological  position  defended  by  scholars  like  M.  Tarde. 
In  that  event  there  would  appear  a  new  development  in 
the  character  of  punishment.  Until  then,  if  the  law  breaks 
too  brusquely  with  traditional  sentiment,  it  will  endanger 
1  Carnevale,  "  La  questione  della  Pena  di  morte,"  chap.  iii. 


§44]  THE  ITALIAN  SCHOOL  127 

morality  by  shattering  the  foundations  upon  which  it  rests 
before  sufficiently  establishing  the  principles  to  serve  as 
its  future  basis.  Accordingly  this  conception  of  the  social 
sanction,  in  so  far  as  it  is  the  expression  of  the  popular  idea 
of  justice,  must  be  retained.  Yet  this  is  admittedly  a 
temporary  consideration  that  will  eventually  give  way 
under  changing  views.  For  the  present,  the  maintenance 
of  a  proper  public  conscience  remains  a  second  distinctive 
trait  of  punishment.  Such  in  rough  outline  are  the  prin- 
ciples of  this  intermediate  school. 

§  44.   The  Physical  Recognition  of  the  Criminal ;  Innate  and 
Acquired  Degenerate  Traits 

It  thus  becomes  evident  how  far  from  acceptance  are 
the  extreme  consequences  of  the  logic  of  the  Italian  school, 
even  by  the  most  confirmed  determinists.  But  the  problem 
turns  upon  the  possibility  of  an  exact  scientific  criterion  of 
distinction  between  the  true  and  the  false  criminal.  If  we 
are  to  make  arrests  before  crimes  are  committed,  there  must 
be  positive  assurance  that  we  are  dealing  with  a  criminal 
prepared  to  commit  crime;  otherwise  the  liberty  of  all  is 
threatened.  Conversely,  if  a  patent  of  honesty  is  granted 
to  a  man  who  may  be  a  thief  or  a  murderer  there  must  be 
positive  assurance  that  there  is  no  mistake.  A  character- 
istic index  of  honesty  as  infallible  as  the  criterion  of 
criminality  must  be  available.  If  such  a  criterion  exists, 
practically  any  system  will  work  ;  if  not,  the  whole  system 
is  nearly  or  quite  worthless. 

Hence  Lombroso's  criminal  type  becomes  an  important 
factor  of  his  system.  The  advocates  of  the  Italian  school 
maintain  that  the  varied  and  increasing  discredit  of  such 
a  type  does  not  affect  the  fundamental  ideas  and  conclu- 
sions that  proceed  from  their  principles.  This  may  be  the 


128         INDIVIDUALIZATION  OF  PUNISHMENT        [§44 

case  in  theory,  but  practically  the  entire  system  in  general 
becomes  impracticable.  Granted  the  pathological  criminal 
type,  all  is  simple  and  easy;  given  such  a  cranial  contour, 
such  a  facial  angle,  and  related  characteristics,  and  the 
classification  follows.  The  diagnosis  becomes  as  unmis- 
takable as  that  of  tuberculosis.  Under  such  conditions 
suspects  might  be  arrested  and  put  under  restraint,  or  their 
cure  attempted  before  they  had  committed  their  first  crime. 
Likewise,  when  a  crime  had  been  committed  by  a  person 
with  normal  features  he  would  be  confidently  held  exempt 
from  punishment;  he  would  be  pronounced  a  pseudo-crim- 
inal. The  true  criminal  would  be  recognized  and  differen- 
tiated from  the  pseudo-criminal,  the  fictitious  criminal, 
chargeable  with  crime  but  not  with  criminality  ;  and,  like- 
wise, an  incorrigible  would  be  differentiated  from  one  amen- 
able to  reform.  Every  variety  of  criminal  would  be 
recognizable  by  his  pathological  features.  There  would  be 
a  type  of  the  assassin,  and  another  of  the  thief;  a  type  of 
the  political  criminal,  and  so  on.  Even  the  different  varieties 
of  assassins  would  be  thus  disclosed.  Such  a  discovery 
would  indeed  be  marvelous.  A  few  measurements  would 
be  sufficient  to  determine  the  nature  of  the  case.  Penal 
justice  in  the  future  would  be  free  from  the  possibility  of 
judicial  error.  Even  if  there  were  an  error  in  the  evidence 
and  the  circumstances  of  the  crime  and  an  innocent  man 
were  to  be  condemned,  it  would  not  matter;  for  the  fact 
of  having  committed  a  crime  would  become  but  an  incident. 
The  chief  consideration  would  be  to  have  spotted  an  in- 
dividual of  a  well-defined  criminal  type.  It  would  be  his 
skull  that  would  make  him  guilty  and  not  his  crime. 

That  justice  thus  administered,  however  confident  of 
itself,  invites  other  difficulties,  is  obvious,  and  is  admitted 
by  Lombroso.  For  if  criminality  is  a  chronic  pathological 


§44]  THE  ITALIAN  SCHOOL  129 

expression  due  to  temperament  or  to  an  hereditary  taint, 
it  is  a  natural  defect;  and  there  is  no  hope  of  cure.  The 
temperament  as  a  part  of  the  congenital  individual  con- 
stitution is  not  subject  to  reform.  This  appears  in  Lom- 
broso's  analysis,  which  regards  criminality  as  a  congenital 
phenomenon  of  reversion,  a  survival  or  reappearance  in 
modern  social  conditions  of  the  ancestral  primitive  man, 
thus  making  of  the  criminal  a  separate  variety.  Likewise, 
those  unfortunates  who  display  the  somatic  symptoms  of 
crime  have  no  possible  hope  of  reform.  The  only  policy 
is  mercilessly  to  eliminate  them.  They  are  anti-social; 
they  are  diseased  elements  that  cannot  be  assimilated  by 
the  body  social.  Why  not  dispose  of  them  as  was  done  with 
the  unfortunate  American  Indians?  This  conception  of 
Lombroso's  school  suggests  mediaeval  justice,  —  the  gal- 
lows for  the  very  first  theft,  at  all  events  for  thieves  by 
temperament.  The  theories  of  the  Italian  school  were  in 
some  measure  put  into  practice  in  the  punitive  justice  of 
the  fifteenth  century;  and  to  introduce  them  now  would  be 
but  a  return  to  the  insecurity  and  the  despotism  of  those 
days. 

It  is  well  to  recognize  that  the  criminal  type,  which  forms 
the  sole  reliance  of  this  system,  does  not  exist;  or  if  it  does, 
it  is  not  as  yet  determinable  by  any  exact  method.1  Un- 
questionably no  one  can  deny  that  pathological  abnormal- 

1  For  the  bibliography  see  Liszt,  "Lehrbuch,"  ed.  1905,  §  14,  note  2, 
p.  69;  and  the  authors  cited  in  the  following  note.  In  the  Revue  penitentiaire 
there  will  be  found  some  interesting  views  on  one  of  the  editions  of  "  L'Uomo 
delinquente,"  Turin,  1897,  by  M .  Granier  (Revue  pSnitentiaire,  1897,  p.  1410). 
Consult  also  Frassati,  "Lo  sperimentalismo  nel  diritto  penale,"  Turin,  1892. 
In  refutation  of  the  theories  of  the  Italian  school,  among  other  books  pub- 
lished or  translated  into  French,  see  Lucchini,  "  Le  droit  penal  et  les  nou- 
velles  theories";  Albert  Desjardins,  "La  m6thode  exp&imentale  appliquee 
au  droit  criminel  en  Italie"  (Paris,  1892);  and  Vidal,  "Principes  fondamen- 
taiix  de  la  pcnulite"  (1890). 


130         INDIVIDUALIZATION  OF  PUNISHMENT        [§44 

ities  are  found  among  the  majority  of  criminals.  Marks 
of  degeneracy,  in  part  hereditary,  in  part  acquired,  are 
almost  always  present.  But  it  is  not  possible  to  interpret 
such  symptoms  as  a  characteristic  sign,  infallibly,  univer- 
sally, and  necessarily  indicative  of  criminality;  and  still 
less  is  it  possible  thus  to  determine  particular  varieties  of 
criminals.  There  are  born  criminals  who  are  thorough 
perverts,  who  lack  every  moral  sense  and  have  lost  all  feel- 
ing of  compassion  and  uprightness,  and  who  yet  bear  the 
normal  features  of  honest  men  ;  and  on  the  other  hand 
there  are  persons  who  conform  to  the  degenerate  type,  who 
present  all  the  Lombrosian  abnormalities,  who  may  be, 
and  probably  are,  neuropathic  and  ineffective,  but  who 
have  not  committed  crimes  and  are  not  likely  to  do  so,  and 
many  of  whom,  if  given  a  favorable  environment  or  a  saving 
moral  support,  will  keep  to  regular  ways  and  steer  an  honest 
course  through  life.  If  they  reach  a  third,  or  even  a  half, 
of  the  normal  period  of  life  without  having  committed  a 
crime,  shall  they  be  objects  of  suspicion  solely  by  reason 
of  their  features? 

Moreover  such  abnormalities  are  quite  as  commonly  ac- 
quired as  hereditary  or  congenital.  They  are  due  to  habitual 
vice,  and  in  the  confirmed  criminal  they  are  due  to  habitual 
crime;  they  bear  the  indelible  mark  of  their  professional 
type.1  Such  stigmata  may  also  be  due  to  the  prison-habit, 
and  bear  witness  to  the  influence  of  the  environment.  As  a 
consequence  of  like  routine  and  occupation,  of  like  habits 

1  See  Baer,  "Der  Verbrecher  in  anthropologischen  Beziehung"  (Leipzig, 
1893).  Consult  also  Tarde,  "  Criminalite  compared,"  the  chapter  on  Le 
type  criminel;  Puybaraud,  "Les  malfaiteurs  de  profession,"  passim;  Dos- 
toievsky, "Souvenirs  de  la  maison  des  morts"  (third  edition),  p.  13,  seq.; 
Morrison,  "Crime  and  its  Causes"  (London,  1891),  chap.  vii.  Consult  L. 
Ferriani,  "  Delinquent},  scaltri  e  fortunati"  (Como,  1897);  and  also  the 
excellent  chapter  by  M.  July  on  the  organization  of  criminals:  Henry 
Joly,  "Le  crime,"  p.  277,  seq. 


§44]  THE  ITALIAN  SCHOOL  131 

and  manners  if  not  of  like  thoughts,  the  physical  type  tends 
to  become  the  same  for  all  members  of  the  same  profession. 
This  is  observable  in  all  callings;  and  crime  for  certain  in- 
dividuals, sadly  enough,  is  a  calling.  It  thus  becomes  most 
difficult  to  distinguish  among  pathological  marks  those  that 
are  congenital  from  those  acquired  and  artificial. 

However,  criminality  acquired  through  contagion  has  not 
the  same  pathological  standing  as  innate  criminality.  In 
one  respect  it  is  more  serious,  in  another  less  so.  In  so  far 
as  innate  criminality  remains  latent  and  inactive,  there  is 
hope  of  its  elimination;  while  that  which  is  due  to  habit  or 
environment  may  appear  with  all  the  violence  of  an  acute 
crisis.  But,  on  the  other  hand,  this  same  acquired  criminality 
may  often  yield  to  a  cure  less  drastic  than  does  the  hereditary 
form;  and  even  in  the  case  of  the  latter  its  origin  is  not  a 
matter  of  indifference.  Is  it  a  racial  survival,  or  a  degeneracy 
of  a  more  immediate  source?  In  the  former  case  it  is  the  out- 
crop of  a  primitive  racial  trait  that  reappears  in  all  its  origi- 
nal force;  in  the  latter  it  is  a  new  racial  trait  taking  the  place 
of  the  old.  Or  is  the  latter  hypothesis  but  a  forlorn  hope 
that  the  regeneration  thus  affected  may  bring  to  light  not  the 
primitive  man  but  his  remote  ancestor  as  he  was  before  the 
fall?  But  if  for  all  these  phases  of  individual  criminality 
the  pathological  marks  are  the  same,  how  can  we  distinguish, 
at  first  blush,  the  type  of  individual  with  which  we  have  to 
deal?  How  can  we  avoid  confusing  all  types,  —  the  born  crim- 
inal in  whom  criminality  has  not  yet  shown  itself  even  in  the 
form  of  moral  perversity,  and  the  criminal  by  practice;  or 
again,  the  hereditary  criminal,  and  the  criminal  by  con- 
tagion. Where  shall  we  find  the  decisive  marks  for  such  dis- 
crimination? Indeed  they  do  not  exist.  The  danger  lies 
not  in  the  lack  of  criminal  somatic  symptoms,  but  in  their 
partial  presence.  For  this  reason,  if  one  follows  Lombroso 


132         INDIVIDUALIZATION  OF  PUNISHMENT       [§  45 

and  ascribes  to  them  an  absolute  and  exclusive  status,  the 
application  of  punishment  becomes  a  matter  of  chance,  for 
this  type  of  relation  is  inherently  variable.  The  relations 
between  the  moral  and  physical  are  not  subject  to  exact 
scientific  laws,  at  least  not  with  the  instruments  and  the 
methods  at  our  disposal.  Hence  this  position  is  untenable.1 

§  45.   Other  Phases  of  Italian  Penology ;  Judicial  Diagnosis 

But  what  is  there  left  of  the  Italian  school  if  deprived  of 
Lombroso's  theory  of  the  criminal  type?  What  remains  may 
be  formulated  in  the  following  four  propositions.  First,  pun- 
ishment is  but  a  simple  measure  of  prevention  in  no  way 
different  from  the  precautionary  measures  taken  with  refer- 
ence to  the  insane.  Second,  punishment  is  not  the  sole  meas- 
ure of  prevention  to  be  taken  against  criminals,  for  in  place 
thereof  use  may  be  made  of  a  whole  series  of  measures,  in 
part  economic  or  social  rather  than  purely  individual,  all 
designed  to  suppress  or  to  cure  latent  criminality.  Third, 
punishment  is  not  a  penalty  but  a  sort  of  individual  treat- 
ment, which  must  not  be  fixed  in  advance  by  law  in  terms  of 
an  abstract  crime  considered  solely  as  to  its  objective  char- 
acter. In  the  practice  of  medicine  it  cannot  be  determined 
in  advance  just  how  long  the  treatment  of  a  given  disease 
must  be  followed;  that  depends  upon  the  patient.  Just  so 
in  criminology.  It  is  absurd  to  fix  in  advance,  without 
knowledge  of  the  individual,  the  nature  and  the  period  of  his 
punishment.  The  legal  assumption  that  the  law  alone  shall 
determine  the  maximum  period  of  punishment  has  no  justi- 
fication. Fourth,  crime  retains  its  purely  symptomatic  value. 
Doubtless,  if  Lombroso's  criminal  type  falls  away,  there  is 
no  occasion  to  guard  against  alleged  criminals  who  have  not 

1  See  Colajanni,  "Sociologia  criminale";  and  a  very  interesting  lecture 
by  M.  Prins,  "La  criminalite  et  1'etat  social"  (Brussels,  1890). 


§45]  THE  ITALIAN  SCHOOL  133 

committed  crimes.  But  the  commission  of  a  crime  has  no 
other  status  than  legally  to  confirm  the  prognosis  disclosed 
by  various  symptoms  by  which  are  made  manifest  the  or- 
ganic criminality  of  the  individual.  If  this  is  the  case,  it  is 
absurd  to  suppose  that  the  list  of  crimes  may  be  prescribed 
by  law  in  definite  terms.  There  may  be  many  other  abnor- 
mal actions,  many  other  expressions  of  criminality  than 
those  legally  recognized.  The  judge,  well  informed  in  the 
progress  of  science,  must  shape  the  conception  of  crime.  The 
intervention  of  the  law  in  determining  the  social  gravity  of 
crime  is  intelligible  but  not  justifiable.  The  crime  enters 
only  as  one  factor  in  the  judicial  diagnosis.  Accordingly,  the 
judge,  who  is  charged  with  the  diagnosis,  should  have  the 
right  to  treat  as  criminal  symptoms  such  abnormal  facts  and 
actions  as  have  a  comparable  status  and  may  serve  as  evi- 
dence of  criminality.  If  the  criminal  type  falls  away,  it  is 
but  an  additional  reason  for  substituting  for  it  the  aggregate 
evidence  and  the  symptomatic  marks  that  constitute  the 
judicial  diagnosis  of  criminality.  The  position  tends  to 
abolish  yet  another  principle  legally  upheld;  namely,  that 
there  shall  be  no  punishment  and  no  violation  unless  there 
be  a  clause  of  the  law  that  specifies  the  offense  and  prescribes 
the  punishment.  In  the  theory  under  consideration  this 
amounts  to  saying  that  there  shall  be  no  penal  law,  that  the 
penal  code  may  as  well  be  abrogated. 

These  several  conclusions  may  be  reduced  to  the  following 
two  principles:  that  crime  in  itself  has  only  a  symptomatic 
value  and  serves  but  to  reveal  the  presence  of  criminality 
and  the  special  degree  of  criminality  of  the  offender;  and  that 
punishment  is  not  the  penalty  of  the  crime,  but  a  preventive 
measure  to  be  taken  against  individual  criminality,  —  a 
curative  measure  if  a  cure  is  possible,  a  measure  of  definite 
elimination  if  there  is  no  chance  for  improvement.  We  are 


134         INDIVIDUALIZATION  OF  PUNISHMENT       [§46 

thus  brought  back  to  the  classification  of  criminals  and  the 
measures  of  individualization. 

We  thus  reach  an  individualization  of  punishment,  which, 
once  and  for  all,  replaces  the  entire  punitive  procedure  pre- 
scribed by  the  law  according  to  the  outer  character  of  the 
crime,  —  an  individualization  adjusted  not  to  the  crime  but  to 
the  organic,  latent,  or  manifest  criminality  of  the  individual. 
This  point  alone  persists;  the  conception  of  responsibility 
disappears,  and  individualization  takes  its  place;  and  we 
reach  the  order  of  ideas  and  the  sphere  of  action  of  the  Italian 
school.  Their  definition  of  individualization  becomes  merely 
the  utilization  of  repressive  measures  to  attain  the  essential 
end,  which  is  the  elimination  of  criminality  either  by  the 
moral  reform  of  the  criminal,  or,  if  not  amenable  to  reform, 
by  his  segregation;  and  in  either  case  the  adaptation  of  the 
punishment  to  the  psychological  character  of  the  criminal.1 

§  46.  What  Italian  Penology  has  accomplished 

We  should  be  very  grateful  to  the  Italian  school  for  having 
called  attention  to  this  new  aspect  of  the  individualization  of 
punishment,  and  for  having  thus  substituted  the  individualiza- 
tion based  upon  the  character  of  the  agent  for  the  neo-classic 
conception  of  individualization  based  upon  responsibility. 
Doubtless  it  should  not  be  forgotten  that  Wahlberg  in  1869, 
at  the  same  time  that  he  introduced  the  word  "  individuali- 
zation," had  already  established,  with  a  mass  of  detail  that 
still  retains  its  importance,  the  essential  relation  between 
the  psychological  character  of  the  individual  and  the  deter- 
mination of  the  punishment.2  But  nevertheless  it  should  be 
recognized  that  to  give  the  new  principle  its  full  scope,  and 

1  See  an  important  chapter  of  Vargha'a  "Die  Abschaffung  der  Straf- 
knechtschaft,"  Vol.  II,  p.  119,  seq.,  and  p.  504. 

1  Wahlberg,  "Das  Princip  der  Individualisirung  in  der  Strafrechtspflege," 
Vienna,  1869.  Note  particularly  chap,  vi,  p.  144,  teq.,  and  p.  160. 


§46]  THE  ITALIAN  SCHOOL  135 

still  more  its  setting  and  its  definite  basis,  there  was  needed 
the  solid  logical  construction  of  the  Italian  school. 

This  school  deserves  recognition  on  still  other  counts:  for 
having  indicated  by  its  inexorable  logic  where  the  conse- 
quences of  an  absolute  determinism  lead;  and  for  having  thus 
clearly  set  forth  the  nature  of  the  penal  law  of  the  future,  if 
ever  this  practical  philosophy  shall  take  the  place  of  the 
popular  and  traditional  conception  of  responsibility.  One 
must  also  be  grateful  to  it  for  its  extension  of  the  conception 
of  the  judicial  function  in  penology  —  for  having  made  it 
clear  that  a  judge  is  not  an  automatic  distributor  of  legal 
punishment  but  has  a  distinct  part  to  play  in  criminal  eco- 
nomics, and  that  punishment  in  itself  is  of  no  avail  but  must 
always  be  supplemented  by  the  introduction  of  educative 
and  preventive  measures,  which  in  turn  must  be  under  the 
jurisdiction  of  the  judge. 

Finally  one  should  be  grateful  to  this  school  for  the  several 
problems  which  it  has  proposed  and  the  several  queries  which 
it  has  raised,  and,  particularly,  for  having  produced  such 
works  as  Garofalo's  "Criminology,"  which,  for  jurists  as 
well  as  for  sociologists,  is  a  most  characteristic  and  sugges- 
tive production  of  the  penological  literature  of  our  times,  — 
a  work  of  original  scope,  and  a  most  useful  contribution  to 
the  needed  reform  of  our  criminal  laws. 

We  may  now  take  up  this  new  group  of  conceptions  and 
examine  what  portions  thereof  are  to  be  considered  false,  and 
what,  in  the  present  stage  of  development,  may  be  retained 
as  sound.1 

1  To  understand  the  logical  position  of  the  Italian  school  it  is  well  to  be- 
come acquainted  with  the  work  of  the  International  Congresses  of  Criminal 
Anthropology,  organized  by  followers  of  this  school,  the  detailed  reports 
of  which  will  be  found  in  the  "Archives  de  1'anthropologie  criminelle  et  des 
sciences  penales,"  published  under  the  direction  of  Dr.  Lacassagne,  at  the 
Congress  at  Rome,  1885  (Archives,  1886);  at  Paris,  1889  (Archives,  1889); 


136         INDIVIDUALIZATION  OF  PUNISHMENT       [§  46 

at  Brussels,  1892  (Archives.  1892);  at  Geneva,  1896  (Archives,  1896);  at 
Amsterdam,  1901  (Archives,  1901);  at  Turin,  1906  (Archives,  1908).  The 
seventh  took  place  in  October,  1911,  at  Cologne.  It  appears  from  these 
several  Congresses,  particularly  that  of  Amsterdam,  that  the  anthropo- 
logical point  of  view  which  is  looked  upon,  though  incorrectly,  as  the 
characteristic  point  of  view  of  Lombroso,  at  least  in  its  origins,  is  tending 
to  lose  ground  even  within  the  Italian  school,  and  to  give  an  ever- 
increasing  place  under  the  influence  of  Ferri,  to  the  social  causes  of  crime. 
On  this  point  consult  the  important  account  given  by  Ferri  at  the  Congress 
at  Amsterdam:  The  Fifth  Congress  of  Criminal  Anthropology  (Revue  Scien- 
tifique,  1902,  p.  331).  Likewise  at  the  same  Congress  a  very  interesting  re- 
port was  given  by  M .  Gauckler  to  the  section  of  Prisons,  followed  by  a  general 
discussion,  and  by  critical  remarks  by  M.  Tarde  (Revue  penitentiaire,  1901, 
p.  1458). 

But  the  Italian  school,  despite  criticism,  is  unwilling  to  give  up  entirely 
the  conception  of  the  bom  criminal.  On  this  point  see  an  article  by  M. 
Cuche,  "L'Eclectisme  en  droit  p£nal"  (Revue  penitentiaire,  1907,  p.  944,  seq.). 

In  regard  to  the  classification  of  criminals  and  its  most  recent  literature 
consult  the  bibliography  in  the  last  editions  of  the  text-book  of  penal  law 
(Lehrbuch)  of  von  Liszt;  and  equally  the  last  editions  of  the  standard  repre- 
sentatives of  the  Italian  school.  Consult  also  the  excellent  work  of  Sir  Robert 
Anderson,  "Criminals  and  Crime,"  London,  1907,  principally  chap,  vii, 
p.  102,  seq.;  and  in  regard  to  Anderson's  book,  a  most  important  article  by 
Sir  Alfred  Wills,  "Criminals  and  Crime,"  in  the  Nineteenth  Century  and 
After  (December,  1907),  p.  879,  but  principally  pp.  884-894.  In  answer  to 
this  remarkable  essay  there  will  be  found  in  the  same  review  (January,  1908, 
p.  80,  seq.),  and  under  the  same  title  (Criminals  and  Crime),  some  personal 
observations  of  a  former  prisoner  —  H .  J.  B.  Montgomery  —  in  which  he 
expresses  somewhat  less  favorable  opinion  of  the  system  of  indeterminate 
sentences,  and  an  estimate,  which  seems  very  just,  of  the  deterrent  effect  of 
long-term  sentences.  He  presents,  side  by  side  with  these  opinions,  certain 
views  which  seem  less  correct,  at  least  so  far  as  they  touch  upon  professional 
offenders.  This  last  point  has  been  answered  in  a  decisive  reply  by  Sir 
Robert  Anderson,  in  the  following  number  of  the  Nineteenth  Century  (Febru- 
ary, 1908,  p.  199),  again  under  the  title  of  "Criminals  and  Crime."  See  also 
an  interesting  attempt  at  classification  by  the  administration  itself,  and  as 
applied  to  prison  government,  a  most  suggestive  report  of  M.  Antoine  Ballve, 
director  of  the  Penitentiary  at  Buenos  Ayres  (Le  Penitencier  national  de 
Buenos- Ayres),  in  the  Archives  de  Psiquiatria  y  criminologia  by  Dr.  Jose 
Ingegnieros,  professor  at  the  University  of  Buenos  Ayres  (May,  June,  1907, 
p.  264,  seq.);  and  finally  by  Professor  Jose  Ingegnieros,  "Nuova  classifi- 
cazione  dei  delinquent!,"  second  edition,  appearing  in  the  Biblioteca  di  Scienze 
Politiche  e  Sociali  (Remo  Sandron,  Milan). 

See  also  the  second  study  of  Reinhard  Frank,  "  Vergeltungsstraf e  und 
Schutzstrafe  ";  "Die  Lehre  Lombrosos"  (Zwei  Vortrage),  Tubingen.  Mohr, 
1908. 


^  47.  The  Moral  Issues  in  Punishment. 

§  48.   The  Criterion  of  Normality;  Crime  and  Insanity;  Mental  and  Moral 

Maturity. 

§  49.   Preventive  Punishments  for  the  Irresponsible. 
§  50.   True  Punishments  for  True  Criminals. 
§  51.   A  Mediating  View. 

§  52.   The  Popular  and  Social  Bases  of  Responsibility;  Social  Solidarity. 
§  53.   The  Subconscious  Basis  in  Feeling  and  its  Logical  Justification. 
§  54.   Criminality  and  Motives;  Responsibility  and  the  Moral  Nature. 
§  55.   General  and  Specific  Freedom  of  Action. 
§  56.   Responsibility,  Freedom,  and  the  Will. 
§  57.   Freedom  and  the  Principle  of  Causality. 
§  58.   The  Human  Will  as  a  First  Cause. 
§  59.   Determinism  and  the  Environment. 
§  60.   Freedom  Essential  to  Punishment. 

§  47.  The  Moral  Issues  in  Punishment 

THE  position  of  the  Italian  school,  however  consistent  and 
thorough  in  construction,  yet  as  a  whole,  with  due  consider- 
ation of  its  practical  consequences,  must  be  rejected.  How- 
ever, a  selective  analysis  thereof  will  disclose  many  desirable 
factors;  for  it  will  not  do  to  judge  a  system  wholly  by  its 
practical  consequences.  Such  eclectic  procedure  has  been 
followed  by  some  criminologists  to  the  disadvantage  of  their 
position  and  the  discredit  of  their  views.  Even  Liszt  is  open 
to  this  charge.  He  declines  to  accept  Lombroso's  determina- 
tion of  an  anthropological  criminal  type  and  rejects  as  well 

some  of  the  practical  applications  that  seem  to  follow  from 

137 


138         INDIVIDUALIZATION  OF  PUNISHMENT       [§  47 

the  premises  of  the  Italian  school,  but  he  accepts  others  that 
involve  the  same  assumptions.1  This  indicates  a  bias,  along 
with  a  catholic  scientific  spirit,  in  the  general  trend  of  his 
position;  but  the  contour  lines  of  his  system  seem  somewhat 
wavering.  It  is  not  that  the  conclusions  lack  clearness  or 
precision;  indeed,  many  of  them,  as  will  duly  appear,  are 
wholly  commendable.  But  the  foundation  of  this  compro- 
mising system  seems  uncertain;  it  lacks  a  positive  and  defi- 
nite criterion  of  procedure. 

The  two  principal  points  at  issue  may  be  thus  set  forth. 
With  the  discrediting  of  Lombroso's  criminal  type  the  possi- 
bility of  a  preventive  criminology  that  shall  legally  recognize 
the  criminal  in  advance  of  his  committing  a  crime  falls  to 
the  ground,  for  any  such  procedure  would  bring  about  a 
wholly  undesirable  and  impracticable  regime  of  suspicion. 
Liszt  likewise  discards  a  second  practical  conclusion,  namely, 
the  complete  abolition  of  penal  legislation.  This  would  in- 
volve the  doing  away  with  all  legally  prescribed  offenses,  and 
consequently  with  the  principle  that  there  shall  be  recognized 
no  punishment  and  no  crime  except  by  authority  of  statute. 
Liszt  constantly  insists  that  this  principle  is  a  bulwark  of 
individual  liberty.  To  allow  the  judge  at  his  pleasure  to  in- 
troduce new  charges  is  to  open  the  door  to  caprice  and  to  the 
privileges  of  authority,  and  thus  to  political  influence.  This 
is  equally  indefensible.2 

In  other  respects  Liszt  accepts  the  position  of  the  Italian 
school.3  He  is  a  confirmed  determinist,  though  many  crimi- 
nologists  holding  this  view  remain  loyal  to  the  classic  school. 

1  Liszt,  "Lehrbuch  des  deutschen  Strafrechts,"  1905,  p.  72,  note  5. 

1  Liszt,  "Die  deterministischen  Gegner  der  Zweckstrafe,"  §  5,  Zeits.  f. 
d.  get.  Sir.  W.,  Vol.  XIII,  p.  854,  aeq. 

1  Birkmeyer,  "Die  Strafgesetzgebung  der  Gegenwart  in  rechtsvergleichen- 
der  Darstelhmg,"  an  interesting  article  in  the  Review  above  cited.  This 
should  be  read  with  caution  since  it  presents  a  biased  view. 


§47]  DOCTRINE  OF  RESPONSIBILITY  139 

Liszt 1  long  ago  showed  that  any  such  compromise  is  untenable. 
It  can  no  longer  be  questioned  that  in  the  absence  of  free- 
dom there  should  be  no  penalty  ;  for  punishment,  while 
something  more  than  a  penalty  for  moral  transgression,  is 
nevertheless  a  social  measure,  very  different  from  the  police 
regulations  which  society  employs  in  regard  to  the  insane. 
Although  a  normal  individual  cannot  be  charged  with  a 
thorough-going  criminality,  yet  his  crime  gives  evidence  of 
conduct  which  discredits,  offends,  and  arouses  a  strong  aver- 
sion on  the  part  of  others,  and  is  thus  looked  upon  as  evi- 
dence of  moral  obliquity.  A  man  who  shows  himself  equal 
to  the  boldest  crimes  is  more  than  a  potential  criminal;  he  is 
an  actual  criminal.  He  proves  his  moral  abnormality.  If  it 
is  his  purpose  to  steal  he  will  commit  murder  to  accomplish  it. 

He  is  socially  antagonistic.    Yet  this  anti-social  and  abnormal 

• 

being  exercises  the  same  intellectual  functions  as  the  rest  of 
mankind.  His  brain  functions  normally;  he  understands,  he 
reasons  correctly,  but  his  conscience  is  wholly  abnormal.  It  is 
impossible  to  refer  this  anomaly  of  conscience  to  a  physical  or 
morbid  disorder.  It  is  a  psychological  abnormality,  inherent 
in  his  personal  character.  If  one  may  speak  of  his  having  a 
soul,  using  the  word  in  an  acceptable  symbolic  sense,  one 
might  say  that  his  soul  alone  is  at  once  the  source  of  his 
criminality  and  the  point  affected.  In  this  he  differs  from  the 
maniac,  who  is  blindly  and  unconsciously  a  social  menace, 
in  consequence  of  a  physiological  disorder  that  makes  him 
not  only  abnormal  but  alien  to  our  moral  nature.  Hence, 
if  the  entire  inherent  difference  between  the  insane  and  the 

1  See  Liszt,  principally  in  the  article  cited  above,  "  Die  deterministischen 
Gegner  der  Zweckstrafe."  Consult  also  G.  Fulliquet,  "Essai  sur  1'obligation 
morale,"  Paris,  F.  Alcan,  1898,  p.  160,  seq.\  and  the  report  of  M.  Garraud  to 
the  Congress  of  the  International  Union  of  Penal  Law:  "De  la  notion  de  la 
responsabilite  morale  et  penale"  (Bulletin  de  I' Union  intern,  de  dr.  pen. 
Vol.  VI,  1897,  p.  330). 


140         INDIVIDUALIZATION  OF  PUNISHMENT       [§48 

criminal  is  to  be  referred  to  the  status  of  the  conscience,  let 
us  appreciate  how  different  should  be  the  measures  employed 
by  society  towards  the  two.  The  clue  to  the  difference  of 
attitude  lies  in  responsibility. 

But  apart  from  these  considerations  which  are  psycho- 
logical because  the  source  of  criminality  is  psychological, 
punishment  is  yet  further  to  be  differentiated  from  the 
preventive  regulations  concerning  the  insane.  The  two 
differ  necessarily  and  materially  as  well  as  in  their  psycho- 
logical purpose,  as  Alimena  has  pointed  out.  Even  if  we 
disregard  the  difference  in  legal  status  between  the  measures 
of  protection  against  the  insane  and  the  measures  of  re- 
pression for  criminals,  the  two  will  ever  differ  in  their  effects, 
and  hence  in  their  practical  regulation.  The  measures 
adopted  to  cure  the  insane  will  never  serve  to  intimidate 
or  to  reform  criminals. 

§48.  The  Criterion  of  Normality;  Crime  and  Insanity; 
Mental  and  Moral  Maturity 

We  must  now  proceed  to  define  responsibility  apart  from 
its  usual  reference  to  free  will.  Such  responsibility  is  social 
or  sociological  in  character;  it  must  also  be  given  a  legal 
recognition  which  is  to  serve  as  the  requisite  criterion  be- 
tween the  insane  and  the  criminal,  alike  in  preventive,  cura- 
tive, and  protective  aspects.  In  this  connection  there  seems 
to  emerge  a  generally  acceptable  principle.  After  much 
discussion  upon  the  power  to  distinguish  between  right 
and  wrong  it  became  evident  that  this  criterion  constitutes 
one  but  not  the  sole  factor  of  the  moral  nature;  that,  in 
addition,  the  strength  of  the  will  and  of  the  entire  moral 
personality  had  to  be  considered.  There  was  thus  reached 
the  conception  of  normality.  A  normal  being  is  one  capable 
of  exercising  responsibility.  Such  normality  is  especially 


§48]  DOCTRINE  OF  RESPONSIBILITY  141 

related  to  the  will  ;  and  since  the  will  is  determined  and 
conditioned  by  the  motives  that  make  it  effective,  the 
normality  in  question  may  be  referred  to  the  human  faculty 
of  determining  conduct  through  motives.  Hence  the  nor- 
mality ultimately  becomes  related  to  the  motives  them- 
selves. The  normality  of  a  human  being  consists  in  his 
being  subject  as  are  other  men  to  the  influences  of  the 
ordinary  motives  that  regulate  conduct  and  human  actions, 
such  as  those  derived  from  religion,  ethics,  and  conventions. 
Not  to  be  subject  to  such  influences,  to  remain  unimpressed 
by  what  impresses  others,  leads  at  first  to  an  insensibility 
to  these  motives,  then  to  a  gradual  failure  to  understand 
them,  and  finally  to  a  withdrawal  from  a  normal  con- 
dition. Eventually  ordinary  and  normal  motives  tend 
to  arouse  almost  reflexly  an  antagonistic  reaction,  in  all 
aspects  contrary  to  that  experienced  by  other  men. 
The  conduct  appears  —  though  this  is  but  an  appear- 
ance even  in  the  insane  —  to  be  reached  without  motive. 
In  the  extreme  such  conduct  approaches  complete  ab- 
normality and  constitutes  mental  alienation.  The  inter- 
mediate degrees  form  the  transition  from  responsibility  to 
irresponsibility.1  This  position  is  set  forth  definitely  and 
confidently. 

But  the  whole  position  may  be  questioned.  Liszt  him- 
self may  be  credited  with  its  refutal  in  an  illuminating  docu- 
ment.2 If  one  may  judge  by  the  replies  which  his  manifesto 
(for  such  it  truly  may  be  called)  has  aroused,  and  by  Liszt's 
supplementary  article  in  rejoinder,  his  strictures  seem  to 

1  Liszt,  "Die  strafrechtliche  Zurechnungsfahigkeit"  (Zeit.  f.  d.  ges.  Str. 
W.,  Vol.  XVII,  p.  75,  aeq.).    An  abstract  of  Liszt's  important  report  will  be 
found  in  an  article  by  M.  Roux,  in  the  Revue  penitentiaire,  1897,  p.  970. 

2  See  the  well-known  report  of  Liszt  to  the  Third  International  Congress 
of  Psychology,  1896,  republished  by  him  in  his  Review  under  the  title  of  "Die 
strafrechtliche  Zurechnungsfahigkeit"  (Zeit.  /.  d.  g.  Str.  W..Vol.  XVII,  p.  70). 


142         INDIVTOUALIZATION  OF  PUNISHMENT       [§48 

have  made  a  profound  impression.1  What  indeed  is  nor- 
mality in  terms  of  the  power  of  determining  conduct  by 
motives?  Are  the  conditions  to  be  found  only  by  path- 
ological tests?  If  so,  one  must  make  sure  that  alienists  are 
agreed  upon  the  definition,  of  insanity.  But  this  can  rarely 
be  determined  in  cases  of  chronic  insanity  leading  to  crime. 
The  question  is  whether  insanity  —  even  where  there  is  a 
pathological  basis,  such  as  is  revealed  in  crime  and  coexistent 
with  it,  or  indeed  culminating  or  made  manifest  in  a  crim- 
inal action  —  answers  to  the  formula  of  a  chronic  state 
of  insanity  as  traditionally  diagnosed.  While  crime  repre- 
sents an  acute  and  perhaps  a  wholly  transitory  crisis,  it 
is  no  less  a  pathological  crisis.  How  can  the  evidence  of 
insanity  be  found  at  the  time  of  the  criminal  action  apart 
from  the  psychic  factors  through  which  the  abnormality 
of  the  conduct  in  relation  to  its  psychological  motives  and 
impulses  is  revealed,  and  especially  how  can  it  be  ascer- 
tained when  insanity  —  as  in  cases  of  moral  insanity  — 
does  not  appear  until  after  the  decisive  action,  yet  is  pre- 
ceded by  a  period  of  incubation  during  which  the  brain 
functions  normally,  while  the  moral  normality  is  gradually 
lost? 

Moreover  such  cases  are  not  likely  to  be  referred  exclu- 
sively to  alienists,  nor  will  purely  medical  diagnosis  be 
accepted  as  satisfactory.  There  are  many  cases  of  morbid 
disturbance  giving  rise  to  what  may  be  called  partial  re- 
sponsibility, in  which,  so  far  as  responsibility  for  crime  is 
concerned,  there  is  no  way  to  determine  the  degree  of 
cerebral  or  mental  abnormality  except  by  the  degree  of 

1  Liszt,  "Die  strafrechtliche  Zurechnungsfahigkeit"  (Zeit.  f.  d.  ges.  Str. 
W.t  Vol.  XVIII,  1898,  p.  229,  seq.).  The  important  study  on  Liszt's  report 
by  Stooss,  "Von  Liszt's  Angriffe  auf  die  Zurechnungsfahigkeit"  in  the  Revue 
phuUe  suisse,  Vol.  IX,  1896,  p.  417,  seq.,  may  be  read  with  benefit. 


§48]  DOCTRINE  OF  RESPONSIBILITY  143 

abnormality    of    the    will    in    relation    to    its    determining 
motives.1 

It  must  not  be  forgotten  that  along  with  such  deviations 
from  normality  in  the  adult  there  is  likewise  a  normal  psy- 
chological and  organic  development;  and  standards  of 
normality  must  likewise  be  determined  with  reference  to 
adolescence.  This  does  not  involve  a  question  of  a  path- 
ological condition  or  disease.  To  determine  whether  a 
minor  may  be  considered  responsible,  he  need  not  be  re- 
ferred to  alienists  or  physicians.  The  older  laws  accepted 
as  such  a  criterion  the  capacity  for  distinguishing  between 
right  and  wrong.  This  is  now  regarded  as  unsatisfactory, 
for  such  distinction  is  a  purely  intellectual  aspect  of  respon- 
sibility, while  account  should  be  taken  of  the  behavior  of 
the  will  and  the  general  character.  Accordingly  the  pro- 
posed laws,  like  those  of  the  Swiss  revision,  speak  both  of 
intellectual  and  of  moral  maturity,  which  is  not  by  way  of 
definition  but  of  referring  specifically  to  the  stage  of  ac- 
quisition of  psychological  normality.  It  thus  appears  in 
general  and  in  particular  that  psychopathic  examinations 
are  warranted  in  cases  of  crime  only  to  establish  psycho- 
logical abnormalities,  and  that  the  latter  alone  definitely 
constitute  the  fundamental  criterion  of  responsibility  or 
irresponsibility.  Moreover  this  psychological  normality 
is  not  an  original  and  wholly  spontaneous  condition,  but 
a  slow  and  progressive  one  ;  when  once  acquired  it  may 
in  turn  disappear  and  be  lost,  and  this  state  of  lapse,  devi- 

1  On  these  points  useful  and  pertinent  information  is  found  in  Gretener, 
"Die  Zurechnungsfahigkeit  als  Gesetzgebungsfrage,"  1897.  It  is  difficult 
to  accept  the  general  position  of  this  work.  Its  criticism  of  the  proposed 
system  in  Switzerland,  modelled  upon  the  French  system,  of  a  purely  patho- 
logical criterion  of  responsibility,  is  interesting,  but  hardly  warranted.  The 
standard  work,  however,  is  Maudsley,  "Responsibility  in  Mental  Diseases," 
chaps,  v  and  vi;  and  his  "Pathology  of  Mind,"  chaps,  vii  and  viii. 


144         INDIVIDUALIZATION  OF  PUNISHMENT       [§  48 

ation,  or  of  complete  perversion,  has  corresponding  to  it  a 
similar  variation  in  the  relation  existing  between  responsi- 
bility and  irresponsibility.  Thus  there  can  be  no  doubt, 
in  case  of  the  hardened,  the  professional,  or  the  incorrigible 
criminal,  that  moral  reactions  fail  to  occur,  or  rather  that 
they  take  an  abnormal  form.  If  the  normal  behavior  of 
the  will  is  the  criterion  of  responsibility,  it  is  obvious  that 
such  normality  is  less  closely  approximated  in  the  criminal 
of  the  ordinary  detached,  unassimilated  type,  than  in  the 
minor,  or  even  in  the  child  approaching  adolescence.  Yet 
the  law  declares  the  latter  totally  irresponsible,  while  yet 
his  conscience  is  awakening  and  shaping  by  contact  with 
the  morality  of  his  surroundings.  The  chasm  that  sepa- 
rates the  adolescent  from  the  adult  is  less  deep  than  that 
which  separates  the  hardened  criminal  from  the  normal 
man,  in  that  in  the  criminal  the  normal  development  of 
morality  is  replaced  by  a  definite  condition  of  constitu- 
tional lack  of  morality.  The  criminal  by  natural  consti- 
tution is  clearly  irresponsible.  This  was  the  conclusion 
reached  above  from  the  point  of  view  of  freedom  and  of 
responsibility  based  upon  freedom  of  the  will.  If  we  dis- 
regard the  conception  of  free  will  and  hold  to  the  purely 
pathological  and  psychological  conception  of  normality, 
we  inevitably  reach  the  same  conclusion,  —  as  Liszt's  logical 
insight  recognized.  Without  intending  to  introduce  a  sum- 
mary or  exact  reproduction  of  the  development  of  his  position, 
we  may  yet  derive  from  this  general  impression  and  sugges- 
tion of  his  clear  and  vivid  exposition,  the  corroboration  of  his 
conclusion  that  the  true  criminal,  the  criminal  by  nature  and 
by  psychological  condition,  is  not  a  responsible  being.1 

1  See  the  important  discussion  at  the  Congress  at  Lisbon,  especially  the 
discourse  of  M.  van  Hamel,  in  the  Bulletin  de  L 'Union  intern,  de  dr.  pen., 
Vol.  VI,  1897,  p.  468,  seq.,  p.  472. 


§49]  DOCTRINE  OF  RESPONSIBILITY  145 

§  49.   Preventive  Punishments  for  the  Irresponsible 

It  must  be  concluded  that  the  measures  to  be  applied 
to  this  class,  which  we  may  call  punishments  for  security 
or  elimination,  will  no  longer  be  punishments  in  the  legal 
sense  of  the  word  but  will  now  become  true  measures  of 
preventive  regulation,  analogous  to  those  taken  in  regard 
to  the  insane.  Others  have  recognized  this  similarity;  the 
psychological  effects  of  punishment  and  the  psychological 
reactions  that  normally  follow  upon  the  application  of  pre- 
ventive measures  have  much  the  same  specific  character 
as  punishment  itself.  Stooss,  for  example,  emphasized 
this  point.  It  is  indeed  plain  that  punishment,  properly 
so  called,  produces  no  effect  upon  perverted  natures;  for 
persons  of  this  type  cannot  be  reached  by  such  measures.1 
They  require  something  quite  different  from  the  ordinary 
normal  punishment,  which  is  intended  to  be  an  instrument 
of  moral  and  psychological  influence.  For  certain  criminals 
by  birth  there  is  no  hope  on  the  moral  or  psychological  side; 
there  is  nothing  to  be  done  but  to  eliminate  them  as  one 
would  eliminate  a  dangerous  and  uncontrollable  creature. 
Their  susceptibility  to  punishment  is  gone.  Children  are 
not  amenable  to  punishment  although  they  are  really  quite 
responsible;  the  constitutional  criminal  lacks  the  suscepti- 
bility because  he  has  psychologically  lost  it.  He  has  be- 
come immune  to  the  punitive  point  of  view.2 

But  this  immunity  to  the  action  of  punishment  is  not 
necessarily  irresponsibility.  Stooss  is  content  to  say  —  or 

1  Possibly  the  same  is  true  in  regard  to  the  depressing  effect  of  long  term 
punishments.  See  the  article,  above  cited,  of  Montgomery,  "Criminals  and 
Crime,"  in  the  Nineteenth  Century,  1908,  p.  86. 

1  Compare  Stooss  in  the  article  cited  in  the  Revue  penale  suisse,  IX,  p.  417, 
seq.,  and  see  his  able  lecture  at  the  beginning  of  his  course  on  criminal  law 
at  the  University  of  Vienna:  "Der  Geist  der  modernen  Strafgesetzgebung," 
and  published  in  the  Revue  penale  suisse  (1896),  IX,  p.  269,  seq. 


146         INDIVIDUALIZATION  OF  PUNISHMENT       [§  49 

at  least  this  seems  to  be  his  thought  —  that  the  repressive 
measures  to  be  taken  against  this  class  have  lost  their 
specific  character  as  punishments.  For  them  something 
else  must  be  adopted,  namely,  elimination  and  segregation. 
But  this  is  not  necessarily  equivalent  to  an  admission  of 
irresponsibility.  The  question  is  one  of  the  definition  of 
punishment;  if  it  is  defined  by  its  psychological  effects, 
Stooss  is  right.  Punishments  for  purposes  of  protection 
are  not  punishments  in  the  ordinary  sense  of  the  word  ; 
they  must  be  differently  administered  since  they  look  to  a 
different  end,  and  their  effects  are  no  longer  the  same.  But 
if  punishment  is  defined  by  its  legal  character  and  its  psy- 
chological basis  rather  than  by  effects,  and  if  this  basis  of 
punishment  is  to  be  found  in  the  idea  of  responsibility,  one 
may  say  that  every  measure,  whatever  may  be  its  outward 
form,  that  is  applied  to  a  responsible  person  by  virtue  of  his 
responsibility,  is  a  punishment. 

The  proposed  plan  of  Stooss  admits  responsibility  for 
adolescents  so  far  as  they  have  attained  the  age  of  responsi- 
bility, and  applies  to  them  either  a  simple  reprimand  or 
educative  measures.1  On  the  other  hand  it  admits  as  treat- 
ment for  the  incorrigible  no  other  possibility  than  that  of 
elimination.  But  they  are  held  to  account  for  being  thus 
intractable;  they  are  responsible  for  what  they  are.  Ac- 
cordingly, even  these  measures,  different  as  they  are  from 
ordinary  punishments,  are  still  imposed  upon  them  under 
the  name  of  punishment.  In  this  sense  it  is  that  society 
confines  them,  as  it  would  a  dangerous  being  whose  resto- 
ration to  a  normal  condition  is  despaired  of,  and  through 

1  Art.  7  of  the  first  draft.  See  Stooss,  "  Expose  des  motifs  de  1'avant-projet 
de  Code  penal  suisse  "  (1893),  p.  18;  and  the  discussions  on  this  point  before 
the  commission  of  experts.  "  Verhandlungen  der  .  .  .  Expertenkommission 
iiber  den  Vorentwurf  zu  einem  schweizerischen  Strafgesetzbuch  "  (Berne), 
Vol.  I,  p.  49,  seq.  See  also  the  second  revised  draft,  1903,  art.  14. 


§49]  DOCTRINE  OF  RESPONSIBILITY  147 

such  measure  is  expressed  the  social  condemnation  which, 
in  turn,  appeals  to  the  criminal's  innate  morality,  or  to  so 
much  of  it  as  he  retains  in  common  with  the  inalienable  basis 
of  human  conscience.  It  is  true  that  hi  terms  of  their  ex- 
ternal character  and  their  practical  administration  these 
measures  of  protection  are  not  punishments;  but  they 
are  such  in  their  legal  and  social  status.  They  thus  differ 
from  the  measures  taken  in  regard  to  the  insane.  According 
to  Liszt's  present  position  they  are  not  different;  they  are 
merely  applied  to  criminals  who  are  no  longer  responsible. 
As  applied  to  the  majority  of  criminals,  the  attempt  is 
made  to  retain  in  appearance  this  criterion  of  responsibility, 
and  so  far  as  possible,  to  save  the  conception  thereof.1  But 
can  this  be  done?  Is  the  conception  of  normality,  which  hi 
essence  ever  remains  the  practical  basis  of  responsibility 
for  crime,  compatible  with  the  conception  of  criminality? 
Assuredly  it  is  so  for  those  accidental  offenders  whose  nature 
is  not  affected,  in  whom  there  was  no  real  criminality  before 
the  crime,  and  who  have  acquired  none  even  through  the 
effect  of  the  degradation  which  objectively  is  inherent  in 
the  crime  they  have  committed.  But  punishments  of  pure 
intimidation  are  provided  especially  for  this  group.  Their 
purpose  is  to  act  as  deterrent  influences,  and  in  so  far  they 
likewise  become  psychologically  a  modified  order  of  pun- 
ishment; since  those  subjected  thereto  are  not  supposed 
to  be  morally  benefited,  standing,  as  they  do,  in  no  need 
of  moral  reform.  Moreover,  the  measures  applicable  to  the 
incorrigible  class  are  not  reformatory.  If  such  psychological 
purpose  is  the  characteristic  of  punishment,  these  repressive 
measures  are  not  punishments,  since  they  are  only  measures 

1  Liszt  presented  this  view  to  the  Congress  at  Lisbon.  Bulletin  de  I' Union 
intern,  de  dr.  ptn.,  VI,  p.  471.  His  answer  to  the  criticisms  against  his  report 
of  1896  is  found  in  Zeit.f.  d.  g.  Sir.  W.,  1898,  Vol.  XVIII,  229,  seq. 


148         INDIVIDUALIZATION  OF  PUNISHMENT       [§50 

of  protection  aimed  at  another  group  of  persons.  Here 
also,  since  the  idea  of  penalty  no  longer  applies,  one  should 
speak  neither  of  punishment  nor  of  responsibility.  The 
class  concerned  are  fully  normal  individuals.  The  elimi- 
nation of  criminality  is  not  involved. 

§  50.  True  Punishments  for  True  Criminals 

There  is  still  to  be  considered  the  intermediate  group  of 
criminals,  presenting  a  natural  criminality  which  is  to  be 
eradicated  and  is  amenable  to  treatment.  Punishment  is 
designed  for  them.  But  the  term  "  criminality  "  refers  to  an 
initial  foundation  of  abnormality.  Moreover,  this  acquired 
and  chronic  insensibility  of  the  moral  conscience,  which 
constitutes  the  abnormality  of  the  incorrigible,  is  almost 
always  found  as  a  temporary  state  and  as  a  more  intense 
and  acute  condition  at  the  moment  of  committing  the 
crime, —  it  may  be,  the  one  and  only  crime.  Whether  or 
not  this  is  true  can  be  ascertained  only  by  examination  of 
each  case  as  it  arises. 

With  reference  to  crimes  that  degrade  and  dishonor,  —  as- 
suming that  they  do  not  imply  at  the  moment  of  action  an 
antecedent  state  of  abnormality,  —  it  is  clear  that  in  some 
manner  they  create  such  a  condition  by  the  very  conscious- 
ness of  being  abnormal.  This  comes  to  the  author  of  the 
crime  as  a  revelation  and  remains  with  him  as  an  obsession, 
as  a  feeling  of  his  moral  lapse  and  his  social  exclusion.1  Be- 
fore the  crime,  the  obsession  of  the  deed  in  contemplation 
dominates  the  criminal;  he  lives  in  it,  he  cannot  get  away 
from  it.  After  the  crime,  it  is  the  obsession  of  memory,  the 
haunting  vision  of  the  act  committed,  and  along  with  it 
the  feeling  that  through  it  he  has  ostracized  himself  from  the 

1  The  point  is  well  covered  in  an  admirable  address  by  M.  Tarde  before 
the  School  of  Political  Sciences,  Thursday,  January  20,  1898. 


§  50]  DOCTRINE  OF  RESPONSIBILITY  149 

social  group  of  honest  persons,  that  he  belongs  to  another 
class,  that  the  criminal  world  alone  is  open  to  him,  and  that 
he  has  fallen  to  its  level.  At  once  the  dividing  line  of  dis- 
honor and  wrongdoing  created  by  the  crime  blocks  his  path, 
and  brings  him  close  to  abnormality.  Even  a  single  lapse 
may  fundamentally  pervert.  The  habit  of  crime  is  not  al- 
ways a  requisite  for  the  making  of  an  incorrigible;  often  a 
single  crime  may  suffice.  It  may  be  that  the  extreme  in- 
famy of  which  the  individual  is  capable  rises  to  the  surface 
and  overwhelms  him;  under  the  shock  thus  produced  his 
previous  morality  and  the  social  ties  that  stood  by  him  as  a 
support  are  swept  away.  If,  accordingly,  in  order  to  apply 
the  appropriate  treatment,  it  is  not  the  act  itself  that  is  to 
be  the  object  of  the  penalty  but  the  establishment  of  a  state 
of  normality  or  abnormality,  it  is  clear  how  readily  the  idea 
of  constitutional  criminality  may  be  extended.  It  may  even 
be  suddenly  acquired,  but  that  is  of  little  consequence;  and 
the  related  conception  of  abnormality  may  apply  by  a  like 
accident  —  all  this  apart  from  the  conception  of  punishment 
or  responsibility.  It  is  this  parallelism  of  measures  of  pro- 
tection in  regard  to  the  insane  and  measures  of  punishment 
in  regard  to  criminals  that  is  being  more  generally  recognized; 
and  this  brings  us  back  to  the  demands  and  the  proposals  of 
the  Italian  school.  In  returning  to  this  position  it  becomes 
clear  that  in  the  realm  of  moral  and  psychological  normality 
as  of  that  of  free  will,  as  was  observed  in  the  neo-classic 
school,  responsibility  is  denied,  if  not  as  a  theoretical  concep- 
tion, at  least  in  the  individual  and  concrete  form.  We  are 
dealing  only  with  the  abnormal  classes,  and  these  will  soon 
be  recognized  as  the  irresponsible  classes.  It  is  true  that  the 
neo-classic  school  favored  an  exemption  from  punishment, 
which  was  a  serious  matter,  while  now  the  conclusion  drawn 
is  a  treatment  by  way  of  penal  individualization,  and  the 


150         INDIVIDUALIZATION  OF  PUNISHMENT       [§51 

social  danger  is  thus  avoided.  Yet  the  view  offends  the  pop- 
ular conscience,  and  the  traditional  ideas  of  morality  and 
justice  are  likely  to  suffer.  Far  from  this  being  a  lesser  dan- 
ger, some  believe  that  the  menace  to  society  is  thereby 
increased. 

§  51.   A  Mediating  View 

It  would  thus  seem  that  between  the  extreme  solutions  of 
the  classic  and  the  Italian  schools  there  is  hardly  place  for  an 
intermediate  system  resting  on  a  solid  foundation  and  pre- 
senting a  real  unity  of  doctrine.  There  are  certain  tendencies, 
and  based  thereon,  somewhat  fragmentary  and  empirical 
conclusions,  determined  by  such  different  interests  as  those 
of  society  and  of  constituted  authority.  The  construction 
of  a  legal  system  requires  something  different  from  this. 
Clear  ideas  are  needed  and  a  comprehensive  system  that  may 
serve  as  a  guide  for  the  judge's  attitude.  Such  legal  con- 
struction seems  lacking;  and  for  this  reason  Liszt  and  his 
followers  do  not  favor  a  purely  classic  system.  Yet  they 
do  not,  and  never  will  endorse  certain  positions  of  the  Italian 
school.  They  hold  it  as  a  duty  to  science,  as  well  as  to  soci- 
ety, to  attempt  a  statement  of  these  current  and  irresistible 
tendencies.  The  reconstruction  of  penal  law  requires  co- 
operation. The  older  era  had  as  its  point  of  departure  the 
notion  of  the  "criminal  risk,"  and  the  era  now  reaching  its 
completion  that  of  responsibility;  the  era  approaching  is 
that  of  temebilite  —  formidability.  The  word  arouses  dis- 
trust; it  recalls  the  tracking  of  wild  beasts,  and  the  sugges- 
tion is  hardly  acceptable  even  in  reference  to  criminals. 
That  is  why  the  idea  of  individualization  seems  preferable; 
the  criminal  is  not  to  be  hounded  but  reformed.  Punish- 
ment is  not  to  be  made  the  instrument  of  barbarism  but  the 
means  of  social  reinstatement,  and  for  that  purpose  it  must 


§  51]  DOCTRINE  OF  RESPONSIBILITY  151 

be  adapted  to  the  individual.  Simple  though  this  be,  it 
would  seem  to  involve  a  complete  transformation  of  our 
traditional  system;  and  law  is  no  more  hospitable  to  sudden 
revolutions  than  are  other  disciplines.  History,  in  order  to 
build  solidly,  endorses  only  what  is  slowly  evolved;  it  re- 
jects systems  that  are  forced  upon  it  by  authority.  Is  it 
then  possible  to  adapt  a  system  of  individualization  to  our 
traditional  legal  organization?  Is  it  possible  to  set  forth 
principles  and  to  supply  the  general  outlines  within  which 
may  be  gradually  established  the  legal  evolution  that  has  al- 
ready begun?  Such  are  the  pressing  questions.  Upon  this 
topic  each  contributor  may  express  himself,  albeit  modestly 
and  without  pretense,  conscious  that  the  final  word  will  not 
have  been  spoken.  If  such  contributions  are  conscientious, 
scientific  in  type,  and  serviceable  to  society,  they  will 
strengthen  the  cause  of  criminology. 

The  problem  must  be  attacked  from  above.  Hitherto  a 
critical  review  of  systems  has  engaged  our  attention;  we 
must  now  attempt  a  positive  construction,  not  with  any 
immediate  finality,  for  that  would  be  an  idle  system-making, 
but  in  an  attempt  to  weld  the  several  tendencies  ready  for 
fusion  into  an  organic  whole.  Such  an  organic  form  deter- 
mines the  life  of  a  doctrine. 

Practically  we  find  ourselves  in  the  presence  of  two  op- 
posed tendencies.  The  one,  the  neo-classic  school,  reduces 
everything  to  the  conception  of  responsibility;  the  other, 
the  Italian  school,  to  a  determinism.  By  a  strange  contrast 
it  appears  that  what  is  sound  in  the  one  system  is  its  principle, 
and  what  is  false  are  the  conclusions  drawn  therefrom;  while 
in  the  other,  it  is  the  conclusions  that  are  inviting  and  almost 
convincing  but  the  principle  deters.  To  propose  a  possible 
reconciliation  between  the  principles  of  the  one  and  the  con- 
clusions of  the  other  may  seem  a  strange  notion;  but  are  not 


152         INDIVIDUALIZATION  OF  PUNISHMENT       [§  52 

truths  in  nature  and  in  thought  wrought  out  in  terms  of  an- 
tithesis and  irreconcilable  principles?  Therein  lies  the  mys- 
tery of  things.  In  every  field  of  reality  there  appears  this 
mystery  of  the  irreconcilable,  reconciled  in  the  actual.  Such 
indeed  is  the  fact  of  life  itself.  It  is  the  nature  of  religion  to 
fuse  these  persistent  antitheses  and  reconcile  eternal  con- 
tradictions, to  make  us  recognize  that  an  ultimate  account- 
ing transcends  our  intelligence  but  that  the  facts  remain. 
All  this  apparent  eclecticism  would  be  such  in  fact,  were  it 
not  that  it  is  based  upon  consistent  conceptions  and  prin- 
ciples and  not  upon  the  simple  opportunism  of  conclusions; 
but  for  this,  one  might  hesitate  to  propose  so  hybrid  and 
so  novel  a  combination.1 

But  upon  reflection  the  contradiction  in  question  is  en- 
dorsed by  two  sufficiently  authoritative  sponsors,  —  by  pop- 
ular opinion,'  and  thus  by  history,  and  secondly,  by  eccle- 
siastical law,  and  thus  by  moral  doctrine  in  its  most  explicit 
religious  expression.  We  need  not  consider  whether  the 
basis  of  ecclesiastical  law  represents  any  objective  and  gen- 
erally acceptable  reality.  We  have  only  to  consider  it  as  an 
historical  and  social  document  of  intrinsic  value;  in  this 
respect  it  commands  attention.  To  disregard  it  would  be 
unscientific  and  would  run  counter  to  approved  methods 
of  sociology. 

§  52.  The  Popular  and  Social  Bases  of  Responsibility ; 
Social  Solidarity 

It  is  noteworthy  that  the  difficulties  of  the  neo-classic 
doctrine  is  not  due  to  the  fundamental  conception  of  respon- 

1  It  cannot  be  denied  that  the  recent  conceptions  of  individualization 
in  criminal  economics  have  been  regarded,  at  first  sight,  as  very  difficult  to 
reconcile  with  the  traditional  conception  of  responsibility.  See,  for  example, 
an  important  article  by  P.  Cathrein,  S.-J.:  "Das  Strafrecht  der  Zukunft," 
published  in  Stimmen  aus  Maria-Loach  (1896,  p.  461,  489). 


§52]  DOCTRINE  OF  RESPONSIBILITY  153 

sibility.  This  conception  of  responsibility  is  generally  ac- 
cepted, although  somewhat  differently  interpreted.  The 
false  position  lies  in  reducing  responsibility  to  the  concrete 
evidence  of  moral  freedom  in  action;  and  particularly  to 
the  degree  of  freedom  thus  manifested.  This  claim  is  indeed 
strange  and  quite  untenable,  and  is  in  formal  contradic- 
tion with  the  philosophical  view  of  freedom.  The  objection 
to  the  Italian  position  is  not  its  view  of  the  function  of  social 
defense  and  protection.  We  can  hardly  decline  to  regard 
such  protection  as  the  urgent  function  of  penal  law  and 
criminal  economics,  when  each  year's  statistics  shows  a  fright- 
ful increase  in  the  prevalence  of  crime.  Moreover  this  con- 
ception appeared  among  the  older  criminologists,  such  as 
Jousse,  Muyart  de  Vouglans,  Rousseau  de  la  Combe.  They 
certainly  did  not  deny  the  validity  of  the  conception  of  free- 
dom and  responsibility.  The  classification  of  criminals  and 
the  joint  psychological  and  sociological  analysis  of  crime 
are  wholly  commendable.  The  prevention  of  crime  requires 
an  investigation  of  its  causes.  Equally  to  be  approved  is 
the  policy  of  the  adjustment  of  punishment  to  the  degree  of 
the  potential  criminality  and  to  the  temperament  of  the 
criminal.  If  endeavors  are  to  be  directed  against  the  in- 
herent criminality,  the  criminality  resident  in  the  man  and 
not  merely  that  which  comes  to  expression  in  the  crime,  then 
punishment  must  be  made  an  effective  instrument  of  moral- 
ization,  and  not,  as  at  present,  a  means  of  corruption.  This, 
indeed,  along  with  the  growing  demoralization  and  irreli- 
gion,  is  the  most  important  factor  in  the  increase  of  crimi- 
nality. No  one  to-day  doubts  that  these  considerations  will 
become  the  basis  of  the  penal  law  of  the  future.  But  what 
appears  false  and  supremely  dangerous  is  that  fundamentally 
the  Italian  school  impugns  the  only  conception  that,  from 
the  point  of  view  of  morality,  can  preserve  the  conscience: 


154         INDIVIDUALIZATION  OF  PUNISHMENT       [§52 

the  conception  of  responsibility.  It  is  false  to  make  of  pun- 
ishment something  without  influence  upon  the  conscience, 
to  make  it  merely  a  cruel  and  terrible  weapon  in  the  hands 
of  the  State. 

A  recent  and  powerful  drama  presents  the  analogy  of  the 
ties  that  hold  men  together  in  the  social  community  to  those 
existing  between  the  lion  and  the  jackals  who  follow  him  in 
fear  and  trembling.  When  the  jackals  become  strong  enough, 
they  rebel.1  If  punishment  is  to  be  only  the  lion's  paw 
pouncing  upon  its  prey,  if  it  is  to  be  but  the  segregation  of  a 
human  being,  like  a  wild  beast  placed  in  a  cage,  then  here 
likewise  the  jackals  will  rebel;  and  why  should  they  not? 
The  way  to  assure  public  safety  and  social  protection  is  not 
to  overthrow  the  conception  of  responsibility,  but  on  the 
contrary  to  implant  it  in  the  conscience  of  the  masses  and  to 
strengthen  it  by  every  remaining  vestige  of  belief. 

The  conception  of  responsibility  is  a  principle  to  be  pre- 
served at  all  cost;  and  social  protection  is  an  equally  com- 
manding purpose  apparently  opposed  thereto,  but  whose 
interests,  while  including  the  whole  field,  hi  the  end  are  seen 
to  require  a  large  consideration  of  the  criminal  nature  and 
but  little  of  the  crime. 

When  we  consider  the  popular  conception  of  responsibility 
we  find  therein,  as  in  all  conventional  notions,  many  com- 
plex factors:  in  part  an  unconscious  and  inherited  belief, 
which  is  the  product  of  the  cumulative  social  psychology 
of  many  ages  and  must  on  no  account  be  neglected;  and  in 
part  a  real  though  somewhat  slender  and  shallow  conviction 
that  serves  as  the  needed  justification  of  this  antecedent  in- 
stinct in  favor  of  responsibility.  The  social  and  psychologi- 
cal foundation  of  the  conception  of  responsibility  is  its  true 
source,  which  a  scientific  and  observational  analysis  dis- 
1  De  Curd,  "Le  Repas  du  Lion"  (Revue  de  Paris,  1897,  p.  548). 


§52]  DOCTRINE  OF  RESPONSIBILITY  155 

covers;  but  that  is  precisely  what  we  fail  to  consider  and  what 
the  public  ignores.  On  the  other  hand  the  formulated  reason 
constitutes  the  popular  conception.  It  is  the  abstract  and 
ideal  conception  with  which  alone  the  masses  are  acquainted. 
But  when  we  divorce  the  conception  of  responsibility  from 
the  rational  and  logical  conception  which  stands  in  the 
mind  as  its  support,  we  subject  it  to  conditions  that  are  op- 
posed to  its  sociological  foundations. 

The  sociological  factor  in  the  conception  of  responsibility 
is  derived  from  various  sources.  In  his  "Philosophic  penale" 
M.  Tarde  has  shown  the  complexity  thereof,  which,  in  the 
last  analysis,  turns  upon  the  integrity  of  certain  simple  and 
generic  feelings.  Yet  various  opinions  have  been  urged  in 
regard  to  the  sociological  origin  of  the  conception  of  respon- 
sibility, and  doubtless  there  enters  into  it,  in  large  measure, 
certain  effects  of  a  social  solidarity,  or,  as  M.  Tarde  puts  it, 
a  social  affiliation  ("similitude").  Such  is  the  feeling  of 
forming  part  of  a  common  group;  the  feeling  that  any  one 
who  is  capable  of  responsibility  is  like  ourselves  in  his 
psychological  endowment  and  outward  circumstances.  To 
combine  responsibility  and  criminality  is  to  begin  with  so- 
cial coherence  and  end  with  social  detachment;  it  is  to  imply 
a  feeling  of  social  community  and  yet  admit  a  disparity. 
The  farther  apart  men  are  in  race  and  environment,  the  less 
feeling  of  responsibility  they  experience  toward  one  an- 
other. A  man  in  the  presence  of  a  member  of  a  wholly 
foreign  race,  —  for  an  extreme  example  take  a  savage,  — 
experiences  a  sense  of  antagonism,  a  powerful  physical  re- 
action of  repugnance.  A  crime  committed  under  our  social 
conditions  by  a  savage  would  make  the  impression  of  the 
onslaught  of  a  beast;  he  would  be  hounded  and  assaulted. 
This  would  be  a  popular  illustration  of  the  views  of  the 
Italian  school.  All  feeling  of  responsibility  would  tend  to 


156         INDIVIDUALIZATION  OF  PUNISHMENT       [§52 

disappear,  and,  in  excuse  of  its  position  and  attitude,  the 
public  would  resort  to  a  formula  that  summarizes  its  natural 
and  unconscious  prejudice:  "Such  a  man  is  not  like  the  rest 
of  us."  However,  we  comprehend  and  admit  that  he  would 
appear  to  his  own  kind  as  responsible,  for  it  is  the  similar- 
ity of  individuals  that  establishes  a  mutual  responsibility.1 
A  similar  explanation  applies  to  the  observed  phenomenon 
that  political  or  religious  factions  maintain  an  irreconcilable 
antagonism  to  those  most  closely  approaching  their  own 
positions,  and  this  side  by  side  with  frank  sympathy  for  the 
supporters  of  a  radically  opposed  position.2  The  slightest 
divergence  among  a  very  homogeneous  group  becomes  dis- 
loyalty, and  family  relations  all  too  commonly  present  the 
same  situation. 

It  is  true  that  in  the  last  analysis  this  purely  sociological 
factor  corresponds  to  the  idea  of  blame  rather  than  to  that 
of  responsibility,  inasmuch  as  the  term  implies  the  feeling 
of  a  conscious  motive  power  and  self-mastery.  It  is  to  the 
latter  that  the  second  factor  of  the  personal  sense  (so  well 
described  by  M.  Tarde)  corresponds,  which  is  nothing  else 
than  the  reflex  consciousness  of  one's  personality.  This 
indeed  is  a  decidedly  psychological  conception,  or,  if  one 
prefers,  one  belonging  to  social  psychology.  In  the  relation 
of  responsibility  there  is  a  necessary  mutual  contact.  Im- 
agine a  man  living  alone  like  Robinson  on  his  island.  To 
arouse  in  him  a  sense  of  responsibility  would  require  that 
he  believe  in  God.  He  has  no  responsibility  towards  himself, 
unless  he  sets  up  by  the  side  of  his  real  self  a  fictitious  self,  — 

1  To  understand  the  consistency  of  this  view  with  the  essential  founda- 
tions of  society  one  should  read  an  interesting  comment  on  the  conscious- 
ness of  similarity  as  a  social  bond,  in  a  thesis  by  If.  Dobresco,  "  1'fivolution 
de  1'idee  de  droit"  (Paris,  1898). 

1  On  the  community  of  feeling  and  the  psychological  similarity  of  sects 
see  Sighele,  "Psychologic  des  sectes,"  1898,  p.  84. 


§  53]  DOCTRINE  OF  RESPONSIBILITY  157 

the  ideal  self  that  he  ought  to  be  ;  and  this  implies  some 
higher  authority  towards  whom  an  obligation  is  felt,  such 
as  God  or  society.  Hence  responsibility  is  primarily  a  social 
conception;  but,  this  granted,  it  becomes  as  well,  though 
only  secondarily,  a  personal  conception.  It  becomes  this 
through  its  reference  to  the  ego  as  an  independent  cause, 
and  to  the  integrity  of  our  own  personality.  There  is  thus 
involved  a  relation  with  others,  which  is  the  social  aspect  ; 
and  a  relation  with  ourselves,  which  is  the  individual  aspect. 
This  relation  of  personal  origin  consists,  in  essence,  in  the 
identity  of  the  self,  regarded  as  it  is  at  the  moment,  in  re- 
lation to  the  true  and  fundamental  personality.  Nothing 
is  more  characteristic  of  this  relation  than  the  very  history 
of  the  words,  in  terms  of  the  metaphors  and  ideas  which 
they  reflect.  The  insane  man  is  called  alienated;  that  is, 
he  has  become  another,  he  has  become  a  stranger  to  himself 
and  to  his  fellowmen.  Such  lapse,  which  excludes  responsi- 
bility in  the  one  state  for  the  other,  also  applies  as  between 
the  self  of  yesterday  and  the  self  of  to-morrow.  There  is 
a  break  in  the  personality.  When  a  man  thus  becomes  a 
stranger  to  his  true  self  as  well  as  to  his  fellowmen,  he  is 
spoken  of  as  he  really  is,  as  a  being  of  another  nature  with- 
out psychological  contact  with  his  true  self;  he  is  no  longer 
responsible. 

§  53.   The  Subconscious  Basis  in  Feeling  and  its  Logical 
Justification 

This  hereditary  origin  of  responsibility  suggests  further 
considerations  and  involves  other  determining  factors.1  Pos- 

1  As  factors  to  be  considered  one  may  take  into  account  the  sense  of 
social  cohesion,  and  also  the  necessity  of  fictitious  abstraction  in  the  field 
of  the  contest  between  the  instinct  of  individual  morality  and  the  social 
needs.  See  an  important  chapter  in  Giddings,  "Principles  of  Sociology," 
Vol.  II,  chap,  ii;  and  Gumplawicz,  "Precis  de  sociologie,"  Vol.  IV,  principally 
chap,  v,  §  3. 


158         INDIVTOUALIZATION  OF  PUNISHMENT       [§53 

sibly  this  group  of  complex  instincts  may  be  reduced  to  a 
common  point  of  departure  in  simple  and  generic  feelings, 
but  that  is  hardly  essential  to  the  present  interests.  Such 
a  conclusion  results  from  a  careful  and  discerning  obser- 
vation of  the  relations  at  a  given  period  and  the  investigation 
of  these  same  forces  at  a  previous  period,  and  so  on,  going 
back  as  far  as  possible  in  history.  They  are  not  part  of  one's 
own  intimate  and  personal  consciousness.  They  are  not 
the  factors  which  we  feel  and  of  which  we  are  conscious. 
For  us  all  these  things  take  place  hi  what  it  has  been  agreed 
to  call  the  subliminal  or  subconscious  phase  of  mental  ex- 
perience. In  accordance  with  this  historical  growth,  the 
sense  of  responsibility  had  assumed  the  nature  of  an  instinct 
long  before  a  rational  conception  thereof  was  framed,  and 
in  so  far  as  it  is  instinctive,  its  purport  and  bearing  are  least 
perceived  ;  of  that  we  have  slight  consciousness.  But  we  re- 
quire some  abstract  principle  to  explain  the  notion  as  well  as 
seemingly  to  engender  it  ;  and  thus  logic  enters  and  per- 
forms its  service.  We  proceed  to  give  the  situation  a  rational 
appearance,  and  when  we  have  constructed  the  argument 
we  congratulate  ourselves  upon  our  discovery.  We  believe 
that  we  have  created  the  responsibility  ;  or  rather,  inas- 
much as  the  issue  is  believed  to  be  something  real  and 
objective,  we  conclude  that  we  have  discovered  it.  We 
take  pride  in  our  reasoning  that  has  penetrated  to  the 
essence  of  things  and  evolved  the  elements  of  a  living  and 
mysterious  reality  therein  contained.  Such  is  our  logical 
conception  of  responsibility. 

Objectively  these  historical  and  social  aspects  of  the 
conception  of  responsibility  form  its  sole  constituent  factors; 
in  them  it  has  its  being.  But  subjectively,  and  from  the 
point  of  view  of  our  inner  feelings,  they  do  not  exist.  For 
our  consciousness  responsibility  is  what  our  reasoning  has 


§54]  DOCTRINE  OF  RESPONSIBILITY  159 

made  it.  It  contains  what  we  have  put  into  it  ;  and  it  is 
as  such  that  it  is  operative  and  effective,  and  becomes  a 
force  and  a  living  reality.  A  reference  to  history  and  soci- 
ology lays  bare  the  unreality  of  the  abstraction,  yet  at  the 
same  time  discloses  the  skeletal  basis  of  the  construction. 
But  to  animate  it  requires  something  living,  the  spark  of 
logical  reasoning  that  gives  life  to  every  such  artificial  con- 
struction and  makes  of  it  a  principle,  whereby  it  becomes 
an  effective  factor  and  a  motive  of  action.  In  other  words, 
it  is  as  a  subjective  conception  that  responsibility  is  efficient 
and  becomes  a  conscious  motive  force.  It  is  this  subjective 
reality,  this  mental  image  and  concept,  that  the  penal  point 
of  view  must  consider.  The  important  point  is  not  to  deter- 
mine its  origin  in  terms  of  its  sociological  and  psychological 
causes,  but  to  observe  how  it  presents  itself  to  the  mind, 
how  it  lives  and  makes  itself  felt  in  consciousness.  It  is  the 
social  conception,  and  not  the  sociological  analysis  of  respon- 
sibility, that  forms  the  controlling  factor  of  criminal  law. 

§  54.  Criminality  and  Motives ;  Responsibility  and  the  Moral 

Nature 

As  a  subjective  reality  the  popular  mind  has  but  one  mode 
of  representing  responsibility,  and  that  is  under  the  con- 
ception of  causality.  The  popular  analysis  of  this  conception 
finds  no  other  basal  warrant  for  responsibility  than  freedom. 
This  second  stage  in  the  development  of  responsibility  we 
reached  some  time  ago.  There  is  no  doubt  that  the  efforts 
of  certain  modern  scholars  and  philosophers  to  establish 
a  precise  analysis  of  responsibility  apart  from  the  concep- 
tion of  freedom  have  not  taken  hold  of  the  masses.  They 
accept  the  finality  that  in  the  criminal  is  presented  the  proof 
of  his  criminality  ;  the  public,  to  hold  the  criminal  respon- 
sible, requires  that  he  be  the  author  of  the  crime.  He  is  the 


160         INDIVIDUALIZATION  OF  PUNISHMENT       [§54 

victim  of  his  criminality  but  he  has  not  created  it.  These 
considerations  serve  to  establish  the  collective  or  social  in- 
dignation against  the  criminal  deed  as  an  index  of  social 
injury  ;  but  they  do  not  require  the  reference  thereof  to  an 
individual  wrong-doer.  The  criminal  appears  as  the  em- 
bodiment of  criminality  ;  and  it  is  the  criminality  that 
arouses  aversion  and  indignation.  Criminality  is  above 
all  a  menace,  but  it  is  also  a  moral  deformity,  an  anomaly, 
and  a  social  rupture.  We  suffer  by  it  morally.  But  has 
this  feeling  any  other  status  than  that  experienced  in  wit- 
nessing a  shocking  calamity  of  natural  origin,  or  a  tragic 
death  through  accident?  In  witnessing  a  revolting  tragedy 
there  instinctively  arises,  because  of  our  suffering,  an  in- 
evitable impulse  to  investigate  the  cause,  to  determine  and 
remove  it.  When  we  find  this  cause  in  a  being  like  our- 
selves, we  perceive  in  him  the  source  of  present  trouble  and 
the  menace  for  the  future  ;  his  inherent  perversity  is  his 
criminality.  We  have  discovered  the  moral  evil,  but  that 
is  not  sufficient.  Just  as  in  presence  of  a  material  injury 
we  want  to  get  at  the  cause,  so  in  the  presence  of  moral 
wrong  we  want  to  trace  its  original  source.  It  is  against 
this  source  that  our  indignation  should  be  directed,  for  the 
superficial  expression  thereof  is  but  the  mechanical  output 
of  an  underlying  factor  which  we  must  reach.  In  the  last 
analysis  the  criminal,  as  man  to  man,  must  admit  that  the 
initial  cause  lies  in  him,  that  he  himself  is  the  cause.  Man 
is  the  maker  of  his  own  criminality.  The  determinists  say 
that  it  is  part  of  his  personality  and  that  is  what  makes  him 
responsible  for  it.1  But  the  public  adds  that  he  has  control 
of  his  personality  and  of  his  character,  and  that  the  latter 
alone  explains  and  warrants  his  responsibility.  It  is  a  motive 
within  him,  a  primary  factor  of  his  active  and  living  moral- 
1  See  Merkel,  "Lehrbuch  des  deutachen  Strafrechts,"  §  28. 


§54]  DOCTRINE  OF  RESPONSIBILITY  161 

ity.  This  idea  of  a  primary  cause,  which  is  indispensable 
to  the  conception  of  responsibility,  is  identified  with  the 
conception  of  freedom.  It  is  part  of  the  logic  of  the  mind 
and  of  the  inherent  justice  of  things  that  responsibility  is 
always  referred  to  the  series  of  secondary  causes.  The 
public  conceives  of  justice  only  as  that  which  applies  to  the 
primary  cause.  To  hold  the  agent  responsible  requires  that 
the  series  of  causes  shall  stop  with  him  ;  otherwise  it  goes 
beyond  him  and  the  responsibility  belongs  elsewhere,  —  to 
society,  to  God,  if  one  still  believes  in  God.  In  that  event 
it  is  not  referred  to  the  man.  The  public  stops  with  the 
man,  the  author  of  the  crime  ;  and  in  the  logic  of  its  notion 
of  justice  it  must  make  him  the  free  cause  of  his  acts.  With- 
out freedom  there  is  no  responsibility. 

This  factor  in  the  logical  and  ideal  construction  of  respon- 
sibility is  thus  the  only  one  to  which  we'  must  hold  so  far 
as  penal  law  is  concerned,  since  in  the  minds  of  the  masses 
it  is  upon  this  that  the  whole  rests.  For  the  individual, 
as  for  the  collective  consciousness,  moral  freedom  and  re- 
sponsibility are  the  same.  Penal  law  may  in  a  sense  ignore 
the  instinctive  elements  in  the  conception  of  responsibility, 
it  cannot  disregard  the  rational  elements.  It  is  through 
the  ideal  and  fictitious  that  men  are  governed  and  societies 
regulated  ;  and  whatever  may  be  said  or  done,  govern- 
ment and  legislation  cannot  really  run  counter  to  factors 
and  phenomena  as  they  exist,  for  these  form  the  very  struc- 
ture of  society.  The  relation  for  society  as  for  individuals 
is  the  same  as  that  discussed  above,  in  which  the  real  self, 
as  it  is,  is  set  up  against  the  ideal  self,  as  it  is  conceived  to 
be.  In  every  community  there  is  the  real  spirit  which  gives 
it  life,  and  the  ideal  spirit  which  determines  the  goal  of  life. 
The  government  or  legislation  that  disregards  the  former 
will  find  itself  in  direct  opposition  to  the  laws  of  society, 


162         INDIVIDUALIZATION  OF  PUNISHMENT       [§  54 

but  if  the  latter  be  disregarded  the  situation  will  be  still 
more  serious.  It  will  bring  about  not  alone  conflict  and 
friction  within  the  organism  but  a  radical  antagonism.  The 
legal  life  of  society  must  be  in  accord  with  its  true  social 
nature.  It  must  also  express  an  adaptation  of  the  ideal 
personality  that  directs  its  impulses  and  its  progress  to  the 
demands  of  the  natural  laws  that  control  its  operations. 
This  should  never  be  forgotten.  Nations  can  at  times,  and 
for  a  short  period,  exist  without  bread  ;  they  can  never 
exist  without  justice.  Justice  is  the  very  essence  of  the 
ideal  and  progressive  life  of  nations  even  more  than  of  the 
life  of  individuals.  The  composite  school  of  Alimena  agrees 
to  hold  to  these  traditional  ideas  as  they  are  ;  it  accepts 
the  principle  that  society  lives  in  ideals  and  through  justice. 
The  conception  of  responsibility  is  bound  up  with  this 
resulting  conception  of  justice.  There  is  no  fear  that  it 
will  ever  disappear. 

But  it  is  important  to  observe,  after  having  noted  the 
conception  which  society  forms  of  responsibility,  how  it 
practices  it  and  applies  it.  As  an  ideal  conception  we  have 
seen  that  it  rests  upon  an  instinctive  belief,  the  belief  in 
freedom,  which  is  a  purely  intellectual  principle  without 
foundation  in  experience.  How  then  is  this  ideal  principle 
brought  to  a  practical  actuality? 

It  is  at  once  apparent  that  responsibility  as  accepted  in 
current  thought  is  primarily  a  condition  or  possibility.  One 
says  of  a  man,  independently  of  this  or  that  act  of  his,  that 
he  is  a  responsible  being;  and  this  condition  of  responsi- 
bility is  not  the  empirical  confirmation  of  the  state  of  free- 
dom as  we  observe  it,  but  a  claim  of  a  physical  or  natural 
order.  It  means  that  his  condition  is  regarded  as  physio- 
logically normal.  In  the  popular  view  which  holds  to  free- 
dom, the  criterion  of  this  condition  of  responsibility  becomes 


§54]  DOCTRINE  OF  RESPONSIBILITY  163 

the  same  as  for  the  determinists,  who  deny  it:  it  is  resolved 
into  the  idea  of  normality.  It  is  true  that  in  the  one  view 
normality  is  but  a  sign  or  a  symptom,  while  in  the  other  it 
is  fundamental;  and  therein  lies  an  important  distinction. 
For  the  determinists,  for  whom  responsibility  is  but  a  con- 
ception of  a  social  or  psychological  origin,  the  idea  of  nor- 
mality, which  is  its  distinctive  factor,  is  at  once  the  sign 
and  the  essence  thereof.  Back  of  this  appearance  no  other 
reality  is  assumed.  Responsibility  is  made  one  with  normality 
and  thereby  becomes  fundamentally,  as  well  as  apparently, 
a  question  of  moral  pathology.  One  may  thus  understand  the 
reservations  and  hesitations  that  at  present  prevail.  Even 
from  the  pathological  point  of  view  can  there  be  a  clearly 
traced  distinction  between  the  man  of  sound  mind  and  reason, 
who  permits  himself  to  b*  overcome  by  a  momentary  attack 
of  criminality,  and  the  man  who  allows  such  a  condition 
to  become  chronic,  and  again,  between  the  latter  and  a 
man  pathologically  abnormal  ?  The  distinction  between 
the  criminal  by  nature  and  the  insane  is  already  tending 
to  disappear;  and  one  may  anticipate  that  with  the  first 
barrier  let  down,  the  second  easily  follows,  for  the  difference 
between  an  acute  and  a  chronic  attack  lies  only  in  its  per- 
manence and  intensity  and  not  in  the  pathological  and 
psychological  nature  of  the  criminality  which  is  displayed. 
For  the  public  that  believes  in  freedom,  normality  is  the 
basis  of  a  moral  and  a  legal  presumption,  the  index  of  a  real 
condition  whose  probability  is  assumed.  The  popular  con- 
ception refers  to  the  personality  all  the  psychological  factors 
which  form  its  nature.  To  this  personality  are  referred  the 
impulses  and  passions,  as  well  as  the  instincts  and  feelings, 
so  that  all  these  motives  of  conduct  appear  like  the  strings 
of  a  delicately  vibrant  instrument,  of  which  the  personality 
becomes  the  controlling  regulator  and  harmonizer.  Per- 


164         INDIVroUALIZATION  OF  PUNISHMENT       [§54 

sonality  becomes  at  once  the  object  and  the  subject  of  its 
expression.  From  this  position  even  the  fluctuation  of  our 
psychological  and  moral  personality  must  be  ascribed  to  our 
nature,  considered  as  active,  as  itself  the  subject  of  its  own 
activity.  For  the  average  mind  such  an  hypothesis  is  neces- 
sary to  account  for  the  complete  loss  of  the  moral  nature. 
This  may  be  recognized  and  conceded  when  the  fundamental 
tissues  through  which  the  cerebral  processes  function  no 
longer  respond  to  normal  perceptions,  and,  consequently, 
to  the  objective  reality  of  things.  Such  is  the  case  of  a 
pathological  alienation  due  to  a  constitutional  condition, 
whether  inherited  or  acquired  matters  little.  It  is  a  patho- 
logical lack  of  conscience.  The  common  conception  of 
normality,  interpreted  as  a  symptom,  refers  only  to  a  physio- 
logical normality,  any  deviation  from  which  must  be  of  a 
purely  pathological  character.  The  man  who  can  think 
and  reason  normally  remains,  according  to  the  popular  con- 
ception, a  presumably  free  agent.  Physiological  normality 
becomes  a  matter  for  medical  confirmation.1  The  abnormal 
man,  for  whom  this  assumption  of  responsibility  fails,  has 
been  removed  by  pathological  defect  from  the  sphere  of  our 
psychology;  and  as  thus  considered  the  hardened  criminal 
cannot  be  regarded  as  an  abnormal  and  irresponsible  being. 
In  his  case  there  is  a  defect  of  the  moral  sense  and  not  of  the 
faculty  of  free  decision;  he  shows  a  perversion  of  morality 

1  I  recognize  that  the  limitation  of  this  point  of  view,  in  that  it  regards 
normality  in  the  sense  of  penal  responsibility,  implies  that  the  estimate  of 
individuals  shall  refer  to  a  common  environment  and  a  common  sociological 
group;  for,  before  we  can  speak  of  an  individual  normality  within  the  group, 
there  must  be  a  sociological  normality,  that  may  serve  as  a  primary  line  of 
division,  separating  groups,  and  involving  responsibility.  But  this  depends 
upon  an  expression  of  the  social  consciousness,  and  furthermore  tends  gradu- 
ally to  disappear  as  the  sociological  idea  of  the  special  group  extends  and 
becomes  more  comprehensive.  Consult  GumpUmricz, "  Sociologie  et  Politique  " 
(Paris,  1898),  pp.  120-121. 


§55]  DOCTRINE  OF  RESPONSIBILITY  165 

and  not  of  intellectual  perception  or  understanding.  He 
remains  responsible,  if  not  absolutely  for  his  actions,  then 
for  what  he  is  and  for  his  condition.  This  responsibility  for 
a  passive  condition  extends  indirectly  to  the  actions  which 
emanate  therefrom.  Such  is  the  popular  verdict.  The  cri- 
terion of  normality  takes  on  a  more  fixed  and  solid  founda- 
tion than  it  does  in  the  determinist's  position,  because  the 
public  holds  fast  to  an  assumed  ideal  factor,  which  is  pre- 
sumed to  persist,  except  when  abnormalities  of  a  purely 
moral  nature  intervene.1 

§  55.  General  and  Specific  Freedom  of  Action 

But  when  once  the  condition  of  responsibility  is  thus  es- 
tablished does  public  opinion  demand  a  further  evidence  of 
responsibility  in  regard  to  every  action  as  it  occurs?  Or  to 

1  It  was  believed  that  a  simple  and  certain  criterion  had  been  found  in 
collective  intimidation,  the  "  geneial  prevention  "  of  the  Germans.  It  con- 
sisted in  considering  as  responsible  all  those  who  are  amenable  to  the  psy- 
chological effects  of  punishment,  for  it  is  well  known  that  the  insane  are 
incapable  of  being  affected  by  punishment.  But  the  practical  difficulties  were 
not  solved  by  this  step,  for  the  uncertainty  was  but  canied  over  to  the  in- 
termediate group  of  the  semi-abnormal;  and  it  was  no  easier  to  determine 
whether  they  could  be  affected  by  punishment  than  to  determine  whether 
they  were  in  a  condition  of  physiological  and  psychological  abnormality. 
On  the  other  hand,  this  is  a  return  to  a  theoretical  assimilation  of  punish- 
ment and  the  disciplinary  treatment  of  the  insane,  in  the  sense  that  these 
two  orders  of  treatment  differ  only  in  their  effects,  —  as  Alimena  has  very 
clearly  shown.  But  that  they  are  different  in  effect,  and  consequently 
form  a  different  treatment,  does  not  imply  that  they  differ  in  nature  and  in 
status;  and  when  one  speaks  of  responsibility  it  refers  to  the  justification  of 
punishment.  It  is  reasoning  in  a  circle  to  pretend  that  this  justification  of 
punishment  is  present  because  the  effects  of  punishment  make  themselves 
felt,  and  that  the  impression  may  be  of  a  psychological  nature.  In  the  two 
cases  the  justification  of  punishment  remains  the  interest  of  public  security 
without  any  other  distinction.  Consult  the  report  of  Loffler  on  responsi- 
bility: "Der  Begriff  der  Verantwortlichkeit,"  in  the  Bulletin  de  I' Union  in- 
ternationale  de  droit  penal,  Vol.  VI  (1897),  p.  388.  See  also  the  letter  of 
Loffler,  published  by  Liszt  in  his  answer  to  the  stated  criticisms  against  his 
report  of  1896,  in  Liszt's  Review  (Zeit.  f.  d.  Ges.  Str.  W.,  Vol.  XVIII,  1898. 
p.  242). 


166         INDIVIDUALIZATION  OF  PUNISHMENT       [§55 

put  the  question  more  precisely,  does  freedom,  as  the  basis 
of  responsibility,  when  once  assumed  for  a  man  in  a  normal 
condition,  become  the  further  object  of  a  concrete  inquiry 
for  every  subsequent  act?  We  reply,  decidedly  not;  and 
this  conclusion,  though  surprising,  is  not  the  less  correct. 
The  public  consciousness  in  judging  an  individual  act  does 
not  analyze  this  condition  of  freedom,  which  it  accepts  in 
principle  as  the  normal  condition  of  every  man  in  possession 
of  his  faculties;  it  does  not  seek  the  source  or  the  degree  of 
freedom  in  the  act  committed;  it  accepts  the  vague  notions 
of  freedom  and  responsibility  in  their  bearing  upon  the  proof 
of  the  state  of  normality;  it  does  not  inquire  into  first  princi- 
ples nor  analyze  the  concrete  situation.  It  is  not  the  degree 
of  freedom  which  the  act  implies  that  determines  the  degree 
of  popular  indignation,  but  the  degree  of  interest  or  aversion 
which  the  agent  inspires.  This  has  long  been  observed  in 
the  verdicts  of  juries.  The  jury  is  confronted  by  individuals 
perfectly  responsible  for  the  actions  committed,  but  it  ap- 
pears that  the  defendants  have  feelings  quite  like  those  ex- 
perienced by  the  ones  who  are  to  be  their  judges,  that  indeed 
they  are  all  of  like  nature,  with  similar  environment  and 
social  affinity.  Such  considerations  unconsciously  weigh 
with  the  jurors,  and  they  acquit.  It  is  the  natural  principle 
of  responsibility  that  unconsciously  outweighs  the  principle 
which  is  its  assumed  justification.  The  instinctive  feeling 
of  responsibility  determines  the  application,  while  the  ra- 
tional conception  thereof  follows  a  logical  construction. 

In  the  public  mind  freedom  and  responsibility  justify 
the  application  of  penalty.  But  this  popular  conception 
does  not  serve  to  determine  the  degree  of  punishment.  When 
it  comes  to  determining  the  penalty,  it  is  the  entire  man  in 
the  totality  of  his  moral  nature  that  must  be  considered,  and 
not  the  fragmentary  and  incidental  part  of  himself  that  has 


§55]  DOCTRINE  OF  RESPONSIBILITY  167 

found  expression  in  the  crime  committed.  It  is  the  entire 
man,  body  and  soul,  that  comes  under  the  jurisdiction  of 
the  popular  conscience;  and  that  is  why  the  verdicts  of  juries 
so  commonly  differ  from  legal  opinion.  The  law  must  judge 
the  artificial  and  fictitious  person  who  is  revealed  at  the 
moment  of  the  crime,  —  that  is,  the  man  at  a  single  in- 
cidental moment  of  his  existence,  possibly  when  he  is  hardly 
himself,  —  instead  of  judging  the  real  man,  who  can  be 
correctly  appraised  only  in  terms  of  his  entire  life  and  his 
complete  personality. 

If  then  we  desire  to  translate  into  a  legal  principle  these 
several  factors  contributed  by  popular  opinion  —  factors 
that  thus  find  their  source  and  support  in  society  —  we 
may  say  that  the  conceptions  of  freedom  and  responsibility 
remain  the  basis  of  punishment,  but  that  they  do  not  indi- 
cate its  degree  or  serve  for  its  individualization.  A  punish- 
ment must  punish  (that  is,  it  must  be  an  expression  through 
penalty  of  social  disapproval),  only  when  the  act  is  com- 
mitted in  a  normal  condition,  when  it  is  the  work  of  one 
capable  of  freedom.  But  the  freedom  thus  assumed  is  a  fact 
that  escapes  demonstration  and  scientific  analysis.  For  it 
is  primarily  an  abstract  description  of  a  natural  phenome- 
non; it  is  merely  the  rational  justification  of  a  sociological 
reality,  so  to  speak.  Consequently,  to  apply  and  grade 
punishment  does  not  imply  that  we  seek  to  discover  the  de- 
gree of  freedom,  or  that  we  empirically  test  the  abstract 
principle.  What  must  be  considered  is  the  distinctive  char- 
acter of  the  delinquent,  and  the  social  end  to  which  he,  as 
well  as  every  individual  member  of  society,  must  be 
adjusted  or  re-adjusted.  The  crime  is  evidence  of  social 
abnormality;  the  task  to  be  undertaken  is  one  of  social  re- 
adjustment. The  purpose  of  punishment  is  to  further  the 
transition  from  one  to  the  other;  and  it  is  thereby  that  the 


168         INDIVIDUALIZATION  OF  PUNISHMENT       [§  56 

interference  of  society  is  justified.  It  is  towards  this  service 
and  function  that  we  unconsciously  shape  the  means.  We 
thus  reach  the  principle,  which  is  that  of  the  classic  school, 
that  punishment  is  based  upon  the  conception  of  freedom 
and  responsibility;  but  in  application  we  follow  the  principle 
of  the  Italian  school  by  taking  special  account  of  the  psy- 
chological worth  of  the  individual. 

If  we  wish  to  summarize  these  sociological  conclusions  we 
observe  the  following  stages  of  transition  in  passing  from 
the  conception  of  responsibility  to  its  application:  first,  a 
positive  belief,  a  profession  of  faith  in  the  conception  of 
freedom;  second,  its  empirical  identification  with  the  con- 
dition of  normality;  and,  finally,  a  concrete  application, 
determined  by  the  potential  criminality  of  the  individual, 
independently  of  the  criminality  of  the  act  in  itself.  Such  is 
the  somewhat  strange  combination  and  fusion  of  ideas  that 
we  have  reached.  It  proceeds  upon  the  study  of  the  facts, 
the  observation  of  the  social  conditions,  and  the  analysis  of 
the  popular  conscience. 

§  56.  Responsibility,  Freedom,  and  the  Will 

Determinism  and  freedom  are  alike  indispensable  to  the 
social  life,  and  supplement  one  another.  Without  the  law  of 
causality  all  would  be  indefinite;  and  without  the  consider- 
ation of  the  circumstances  no  one  would  receive  a  fair  trial. 
But  without  the  conception  of  freedom  there  would  be 
neither  morality  nor  justice  as  popularly  understood.  For 
the  fate  of  rationality  and  progress  is  bound  up  with  the  idea 
of  freedom.  Especially  when  involving  personal  sacrifice, 
the  popular  view  can  conceive  of  endeavor  only  as  taking 
place  under  the  sway  of  reason  and  the  influence  of  noble  im- 
pulses, as  an  issue  of  the  freedom  of  effort,  exercised  under 
a  belief  in  the  value  of  such  striving  for  the  better.  To 


§  56]  DOCTRINE  OF  RESPONSIBILITY  169 

put  forward  virtue  as  a  variety  of  utility  would  be  popu- 
larly regarded  as  a  falling  off  from  virtue  itself.  Freedom 
and  responsibility  are  words  that  cannot  disappear  from 
common  usage  without  creating  an  irreparable  void  in  the 
current  stock  of  ideas.1  It  is  not  supposed  that  these  terms 
are  popularly  used  to  support  practical,  logical  conclusions. 
In  the  popular  mind  judgments  are  inspired  by  a  practical 
determinism  that  provides  the  means  of  anticipating  con- 
duct. But  it  is  by  laying  bare  the  layers  of  cumulative  ideals 
that  the  nature  of  social  realities  is  exposed.  And  indeed  the 
rigid  conventions  that  hem  us  in  by  reason  of  the  excess  of 
civilization  from  which  we  suffer  are  likely  to  be  more  and 
more  closely  drawn.  It  is  well  not  to  interfere  with  the  bal- 
ance of  opposing  tendencies.  Society  as  realized,  in  common 
with  other  developments,  reflects  the  mystery  of  forces  that 
offset  one  another. 

We  accept  freedom  as  a  traditional  datum  without  which 
every  legal  construction  would  be  in  contradiction  with  pop- 
ular sentiment.  But  must  we  not  go  further?  For  in  the 
end,  if  we  make  freedom  the  foundation  of  responsibility 
solely  because  the  masses  believe  in  it,  is  there  not  danger  of 
a  conflict  between  our  convictions  and  the  legal  solutions 
proposed? 2  Obviously  beliefs  cannot  be  imposed,  and  there 
will  always  be  those  who  question  the  notion  of  freedom. 
But  that  is  not  the  point.  The  question  to  be  determined  is 
whether,  despite  the  appearance  of  facts  (which  it  must  be 
conceded  are  all  opposed  to  the  notion  of  freedom),  this  con- 
ception remains  susceptible  of  a  certain  rational  proof.  That 

1  The  most  convinced  determinists  admit  that  they  cannot  eliminate 
from  human  language  and  conceptions  the  fact  that  the  individual  considers 
himself  a  personality  in  the  independent  sense  of  the  word.     See  Filix  le 
Dantec,  "L'individualite  et  1'erreur  individualist* "  (Paris,  F.  Alcan),  1898, 
pp.  74,  81. 

2  Consult  the  report  of  M.  Garraud,  cited  above,  p.  139,  note. 


170         INDIVIDUALIZATION  OF  PUNISHMENT       [§56 

the  conception  does  not  come  as  an  axiom  is  plain,  since  scien- 
tific observation  does  not  come  upon  freedom  as  a  discovery, 
which  it  then  verifies.  But  freedom  is  not  withdrawn  from 
every  possibility  of  proof.  Otherwise  the  principle  involved 
would  be  but  a  common  fiction,  almost  an  hypocrisy,  which 
the  somewhat  ruthless  reasoning  of  the  popular  mind  will 
perhaps  throw  aside  as  quickly  as  it  accepted  it.  Hence  it 
is  not  sufficient,  in  order  to  maintain  the  conception  of  free- 
dom and  responsibility  as  the  basis  of  penal  law,  to  declare 
that  it  constitutes  a  traditional  postulate,  indispensable  to 
the  security  of  social  morality;  it  must  be  admitted  as  a 
conception  whose  objective  reality  may  be  susceptible  of  at 
least  an  approximate  proof. 

It  is  difficult  to  establish  such  proof  as  long  as  freedom  is 
represented  as  a  state  of  positive  action,  as  a  factor  that  en- 
ters to  determine  the  execution  of  each  of  our  volitions.  In 
this  field  we  perceive  only  the  predominance  of  feelings  or 
ideas.  When  we  follow  an  impulse  or  favor  an  idea,  such 
impulse  or  such  idea  prevails  and  thus  gives  the  cerebral 
mechanism  its  final  direction;  and  this  is  the  very  notion  of 
will  or  of  freedom.  What  is  illusory  is  the  exaggeration  of 
the  idea  of  our  will  when  we  wish  to  will;  and  this  idea  — 
which  is  nothing  more  than  an  idea,  and  often  the  most  ty- 
rannical of  ideas,  the  idea  which  we  form  of  ourself  as  a 
personality  —  acts  as  an  intellectual  obsession  upon  the  mech- 
anism of  our  volition,  in  the  traditional  doctrine  the  mo- 
tives or  inclinations  are  the  elements  of  choice  at  the  disposal 
of  the  free  will.  In  reality  they  are  the  weights  that  are  put  on 
the  balance  and  determine  to  which  side  it  shall  turn.  This 
final  impulse  and  decisive  idea  is  itself  derived  by  way  of 
indirect  influences,  from  the  intrinsic  nature  of  our  personal- 
ity and  character.  It  is  the  totality  of  our  psychic  person- 
ality, unified  and  consistent,  that  determines  our  actions. 


§56]  DOCTRINE  OF  RESPONSIBILITY  171 

In  reality  the  radical  distinction  that  is  supposed  to  exist 
between  instinctive  and  other  actions  applies  only  to  their 
reflex  action  upon  consciousness,  and  not  to  their  mechanism. 
Every  movement  has  the  same  point  of  departure  and  the 
same  mode  of  operation.  Every  idea  tends  to  express  itself 
in  action;  and  it  is  the  idea  that  imparts  the  cerebral  im- 
pulse and,  through  it,  the  muscular  impulse.  In  distinguish- 
ing between  the  will  and  volition  the  free  action  must  be 
referred  back  to  the  idea.  It  is  the  resolution  that  is  free  and 
not  the  action.  But  to  make  sure  that  the  resolution  will 
not  change  and  inevitably  give  rise  to  the  action,  one  must 
suppose  a  psychological  state  of  obsession  persisting  in  a 
permanent  form.  As  to  the  action  of  the  free  will  upon  the 
resolution,  it  arises  only  from  the  decisive  perception  that 
comes  to  dominate  the  rest.  But  in  order  that  this  idea,  if 
not  of  freedom  of  choice  at  least  of  freedom  of  effort,  shall 
be  present,  one  must  suppose  in  addition  that  an  opposed 
tendency  to  the  initial  impulse  has  asserted  itself,  that  the 
idea  of  a  different  issue  has  come  to  mind;  and  every  idea, 
as  is  familiar,  tends  to  express  itself  in  action.  Thus  it  comes 
to  offset  the  other  by  the  very  fact  that  it  exists;  however 
weak  it  may  be,  however  subordinate  the  counter-tendency, 
there  exists,  through  the  very  fact  of  there  being  an  opposed 
idea,  a  conflict  which  begins  and  may  grow;  for  psychologi- 
cally an  idea  never  exists  in  a  purely  passive  condition.  It 
is  well  understood  that,  if  the  idea  of  an  opposite  action  does 
not  present  itself  at  all,  —  and  this  is  quite  too  frequent  in 
case  of  crime  committed  by  an  habitual  criminal  —  there 
can  be  no  question  of  freedom.  If  it  is  present,  it  is  through 
the  growth  of  the  contrary  idea  that  the  notion  of  "not 
doing"  (restraint)  may  come  to  be  the  dominant  force  in 
opposition  to  the  notion  of  "doing."  There  thus  will  occur 
a  moment  at  which  one  of  the  two  ideas  will  be  expressed  in 


172         INDIVIDUALIZATION  OF  PUNISHMENT       [§  57 

an  act  of  will;  then  the  decision  is  made.  Now  there  can  be 
no  doubt  from  the  psychological  point  of  view  that  this  action 
of  a  purely  internal  character  is  produced  through  the  same 
cerebral  functioning  as  is  the  physical  act  which  becomes  the 
external  expression  thereof.  It  becomes  an  impulse  under  the 
sway  of  an  idea  that  has  become  dominant  and  has  reached 
the  condition  of  an  acute  obsession.  Every  idea  that  acts  by 
way  of  the  will  expresses  itself  under  the  form  of  a  momentary 
obsession  which  lasts,  it  may  be,  an  infinitesimal  time,  but  is 
of  the  same  nature  as  an  obsession  of  a  chronic  order. 

In  an  extreme  case  it  is  neither  through  the  volition  pre- 
siding over  the  physical  act  nor  through  the  will  translated 
into  an  inner  resolve,  that  freedom  comes  to  be  realized. 
It  is  possibly  only  through  the  growth  of  the  idea  that  the 
idea  of  willing  is  evolved  by  direct  action  upon  the  feeling 
itself;  that  is,  by  the  personality  acting  upon  itself,  upon 
its  intimate  and  total  character.  Freedom,  if  it  exists, 
extends  over  several  stages;  it  always  goes  back  to  the 
impulsive  feelings,  to  that  which  serves  as  the  motive  forces 
within  us.  It  is  upon  our  sentiments,  feelings  associated  with 
ideas,  that  the  effort  operates  to  oppose  or  develop  them,  to 
further  or  hinder  them.  We  thus  always  reach  this  mysterious 
point  of  the  psychological  nature  at  which  consciousness  dis- 
covers the  unity  of  the  self,  individualized  and  integrated.1 

§  57.  Freedom  and  the  Principle  of  Causality 

However,  here  the  field  of  scientific  investigation  stops; 2 
and  beyond,  the  assertion  of  the  law  of  causality  under  its 

1  All  philosophic  and  scientific  demonstrations  bear  on  this  point.  The 
references  are  endless;  it  is  sufficient,  and  in  the  legal  field  of  punishment 
one  can  do  no  better  than  to  refer  to  Merkd,  "Lehrbuch  des  deutschen 
Strafrechts,"  §§  19  and  20. 

1  In  the  excellent  book  of  P.  Coconnier,  'THypnotisme  franchise,"  p.  367, 
seq.,  will  be  found  a  very  interesting  development  of  the  Thomist  doctrines 
in  regard  to  the  functions  of  the  mind  and  then*  psychological  operation. 


§  57]  DOCTRINE  OF  RESPONSIBILITY  173 

mechanical  form  is  only  a  metaphysical  assumption  which 
has  precisely  the  same  value  as  the  postulate  of  freedom. 
If  one  must  choose  between  these  two  a  priori  data,  it  is 
by  other  than  scientific  or  experimental  methods  that  con- 
viction comes  to  one.  Indeed,  when  we  have  reached  the 
very  foundation  of  our  personality  and  of  the  consistent 
unity  of  our  nature,  we  must  ask  whether  this  personality 
constitutes  a  cause  in  itself,  apart  from  the  physiological 
mechanism  which  is  its  instrument;  whether,  in  conse- 
quence, we  are  by  the  unity  of  self  a  primary  cause,  of 
a  nature  different  from  that  of  the  skin,  nerves,  and  muscles, 
that  transfer  the  vital  impulse.1 

We  unquestioningly  admit  the  influence  upon  one  another 
of  psychic  factors;  and  we  may  believe  that  where  the 
realm  of  the  unconscious  begins,  the  chain  of  causation 
continues,  and  returns  upon  itself  at  the  point  of  meeting 
between  the  psychic  mechanism  which  closes  the  process 
and  the  physiological  organism  that  begins  it.  But  as  we 
remain  within  the  limits  of  what  is  conscious  and  perceived 
as  an  intimate  sense-feeling,  there  is  no  doubt  that  along 
with  the  influence  of  a  physiological  order,  which  we  never 
escape,  there  is  experienced  a  background  of  the  basal  psy- 
chic individuality  to  which  our  moral  nature  is  bound. 
There  is  likewise  no  doubt  that  this  psychological  individu- 
ality is  influenced  by  tendencies  by  way  of  the  perma- 
nent path  of  actions  and  reactions.  But  our  consciousness 
thereof  reveals  it  as  at  once  subject  and  object,  as  a  primary 
cause  acting  upon  itself.  It  thus  answers  to  the  action  of 
environment,  or  in  theological  phrase  belonging  to  another 
realm,  it  answers  to  a  state  of  grace.  The  question  thus 
returns  to  the  determination  of  whether  in  the  last  analysis 

1  See  the  two  important  chapters  of  the  thesis  of  M.  Maurice  Blondel, 
"Y Action,"  part  iii,  §  2,  chaps,  ii  and  iii  (Paris,  F.  Alcan,  1893). 


174         INDIVIDUALIZATION  OF  PUNISHMENT       [§  57 

the  psychological  personality  (outside  of  the  purely  instinc- 
tive phase  of  our  nature)  is  the  issue  of  an  absolute  and 
complete  subjection  to  the  physiological  mechanism,  —  the 
question  assuming  that  we  remain  within  the  field  of  the 
conscious  and  directly  perceptible.  At  this  juncture  we 
have  passed  beyond  the  field  of  experience  and  direct  obser- 
vation. The  argument  passes  to  a  metaphysical  type  of 
explanation  and  makes  the  law  of  mechanical  causality,  as 
expressed  in  unconscious  nature,  equally  the  principle  of 
the  psychic  life  in  its  relation  to  the  organic  personality.1 

This  is  the  type  of  question  which  science  can  answer 
neither  in  the  affirmative  nor  in  the  negative;  for  it  belongs 
to  a  realm  which  science  neither  commands  nor  invades. 
It  involves  the  essential  nature  of  being.  Science  recog- 
nizes only  phenomena;  it  does  not  consider  the  essence 
of  things. 

However,  if  this  question  is  answered  affirmatively,  if 
this  conception  of  self-sufficient  personality  is  capable  of  an 
objective  existence,  then  this  personality  can  exist  only  in 
such  autonomy,  if  it  exercises  a  real  autonomy  over  the 
organism  that  serves  its  expression.  If  a  realm  other  than 
that  of  material  nature  be  admitted,  it  follows  that  man, 
as  a  spiritual  being,  may  be  an  autonomous  force.  Bearing 
upon  this  position  is  the  able  address  of  M.  Sabatier, 
delivered  at  Stockholm.2  While  one  may  not  concede 
all  his  conclusions,  one  will  readily  recognize  their  high 
moral  and  religious  import.  He  sets  forth  the  requisites 

1  On  these  points  see  the  excellent  work  of  Stammler,  "  Wirthschaf t  und 
Recht  nach  der  materialistischen  Geschichtsauffassung  "  (Leipzig,  2d  edition, 
1906).  See  also  the  account  given  by  Keller  in  the  Kritische  Viertaljahres- 
schrift  jur  Oesetzgebung  und  Rechtswissenschaft  (1897,  Vol.  XXXIX,  p.  498. 
seq.).  See  also  a  resum6  of  Stammler's  views  in  his  work  on  solvency  in  the 
German  civil  code,  Stammler,  "Das  Recht  der  Schuldverhaltnisse "  (Berlin, 
1897),  pp.  14-21. 

*  Sabatier,  "La  Religion  et  la  culture  moderne"  (Paris,  1897). 


§58]  DOCTRINE  OF  RESPONSIBILITY  175 

necessary  for  the  transition  from  a  personal  autonomy  of 
thought  to  a  religious  autonomy,  —  an  autonomy,  by  the 
way,  that  remains  perfectly  consistent  with  a  group  of  uni- 
versal dogmatic  truths,  for  the  reason  that  it  is  compre- 
hensible only  in  terms  of  the  inner  life  of  the  soul  and  not 
of  the  objective  reality  of  the  facts  belonging  to  a  differ- 
ent realm.  But  clearly  such  autonomy  is  meaningless  and 
these  conceptions,  ably  and  even  scientifically  expressed, 
are  but  words  without  other  significance  than  as  an  abstract 
construction,  unless  there  correspond  thereto  an  actual 
natural  autonomy  without  which  the  rest  is  but  mental 
illusion  and  fiction.  Such  autonomy  of  the  human  person- 
ality is  what  the  conception  of  freedom  should  signify. 
Freedom  is  the  law  of  whatever  evades  the  realm  of  physical 
nature,  as  causality  is  the  law  of  whatever  belongs  to  the 
world  of  natural  phenomena.  Freedom  is  thus  the  person- 
ality itself,  in  so  far  as  it  is  capable  of  detachment  from  the 
organism  that  serves  as  its  instrument,  and  thus  comes  to 
live  its  true  life  and  to  influence  character  and  all  the  latent 
reserve  forces  that  favor  virtue  and  oppose  vice.1 

§  58.  The  Human  Will  as  a  First  Cause 

Freedom  is  not  necessarily  active.  It  is  a  condition; 
the  condition  of  a  man  in  complete  self-mastery,  —  a  con- 
dition that  accepts  and  implies  an  internal  determinism, 
provided  that  such  psychological  determinism  is  eventually 
connected  with  a  vital  cause  within  the  self  and  part  thereof. 
In  the  traditional  view  free  will  is  conceived  as  a  deter- 
mining influence  interposed  between  the  motives  and  the 
act  itself.  Thus  the  free  will  operates  and  becomes  the 

1  On  the  question  of  freedom  and  moral  responsibility  see  particularly, 
apart  from  the  already  cited  works  of  M.  Fouiltte  and  of  M .  Fonsegrive,  the 
suggestive  study  of  M.  L6vy-BnM,  "L'Idee  de  responsabilite "  (Paris,  1884). 


176         INDIVIDUALIZATION  OF  PUNISHMENT       [§58 

immediate  and  efficient  cause  of  the  action.  In  this  mode 
of  viewing  the  matter  there  is  a  kind  of  anthropomorphism 
derived  from  the  appearance  of  the  action,  as  though  man 
stepped  in  to  the  contest  of  purely  natural  causes  in  order 
to  direct  them  in  defiance  thereof  ;  it  is  the  intervention 
of  human  agency.  In  the  psychological  conflict  there  may 
enter,  at  the  moment  of  action,  an  analogous  factor,  like- 
wise independent  of  the  efficient  psychic  elements  that 
form  the  essential  human  character  as  opposed  to  elements 
of  a  material  order.  Would  it  not  be  better  to  say  that 
freedom  —  assuming  its  existence  as  a  quality  of  action  — 
is  but  the  psychological  personality  acting  upon  itself  and 
influencing  motives  and  inclinations?  Since,  however,  in 
this  analysis  of  the  psychic  personality  there  still  remains 
a  bit  of  purely  artificial  abstraction,  would  it  not  be  still 
better  to  speak  of  it  simply  as  an  influence  upon  character, 
upon  the  basis  of  personality,  from  which  are  derived 
motives,  inclinations,  and  impulses.  In  this  way  freedom 
may  be  said  to  act  upon  the  determining  factors  of  the  will 
itself.  In  the  mental  experience  which  constitutes  the  field 
of  science,  there  appear  only  these  factors  in  operation,  in 
a  series  of  actions  and  reflex  reactions  up  to  the  final  dis- 
charge which  determines  the  act.  But  when  it  is  a  matter 
of  going  beyond  this  into  the  field  of  causes  antecedent  to 
the  primary  cause,  science  can  reason  only  in  hypotheses, 
in  terms  of  a  fundamental  condition  of  the  physiological 
organism.  Offsetting  one  hypothesis  by  another,  one  may 
assume,  along  with  this  unquestioned  relation,  a  factor  of 
a  different  nature,  whose  laws  escape  the  record  of  scien- 
tific instruments  and  whose  principle  is  that  of  free  caus- 
ality. But  precisely  because  such  relation  is  unquestioned 
does  the  condition  of  freedom,  being  but  a  condition,  imply 
variable  stages  from  a  complete  dependence  of  the  person- 


§59]  DOCTRINE  OF  RESPONSIBILITY  177 

ality  upon  the  conditioning  physiological  influences  up  to 
full  self-mastery,  by  which  the  personality,  conformably 
to  the  laws  regulating  its  existence,  transcends  this  organic 
mechanism,  to  develop  the  free  conduct  of  a  transfigured 
and  re-established  personality.  Such  transfiguration  of  the 
self  may  be  the  issue  of  tedious  labor  and  long  effort,  by 
adjustment  to  a  new  environment  and  to  new  influences. 
It  may  also  appear  as  a  sudden  and  profound  conversion, 
which,  like  an  act  of  will,  gives  the  impression  of  being  free 
in  the  traditional  sense.  Thus  is  a  personal  self  regenerated 
and  set  free. 

§  59.  Determinism  and  the  Environment 

Obviously  freedom  does  not  imply  that  caprice  or  break 
with  causality,  which  the  traditional  view  of  free  will  as- 
sumed.1 It  is  character  developing  its  normal  issues,  sub- 
ject to  the  continued  control  of  the  psychological  personality, 
whereby  at  any  moment  it  is  reinstated  as  an  influence 
and  modifies  the  direction  of  its  own  conditioning  factors. 
So  it  may  truly  be  said  of  a  man  that  he  always  acts  accord- 
ing to  the  law  of  his  character,  as  one  may  predict  of  the  poor 
tree  of  the  Gospel  that  it  will  bear  only  poor  fruit.  Psycho- 
logically determinism  bears  the  same  relation  to  freedom 
as  historically  it  bears  to  the  will.  Whether  the  will  be 
free  or  not,  it  is  certain  that  it  introduces  an  incalculable 
factor  in  the  sequence  of  social  issues,  but  this  factor  is  so 
slight  that  sociology  may  disregard  it  and  yet  become  sci- 
entific; moreover,  sociology  may  make  allowance  for  this 
variable  factor  by  establishing  the  laws  controlling  the  in- 
fluences to  which  human  wills  are  subject,  which,  in  turn, 
influence  the  group  of  automatic  personalities  of  which 

1  On  this  point  see  an  able  chapter  in  Print,  "  Criminalite  et  Repression," 
chap,  ii,  §  3. 


178         INDIVIDUALIZATION  OF  PUNISHMENT        [§59 

crowds  are  composed  and  by  whose  actions  history  is  shaped. 
A  similar  relation  obtains  in  regard  to  the  psychological 
determinism  of  the  will  with  reference  to  freedom.  In  pre- 
dicting how  a  certain  type  of  person  will  behave,  one  may 
always  disregard  the  intervention  of  the  incalculable.  On 
the  other  hand  one  may  estimate  the  influences  that  are 
likely  to  arouse  a  reaction  of  the  personality  and  a  free  ad- 
justment on  his  part  to  the  influences  to  which  he  is  exposed; 
and  one  may  say  of  this  adjustment  to  the  influences  of  the 
environment  what  the  theologians  say  of  the  responsiveness 
to  grace,  that  there  is  neither  an  absorption  of  one  in  the 
other  nor  a  fusion  of  the  two,  but  a  reciprocal  interaction 
through  which  the  intrinsic  freedom  and  integral  nature 
of  the  human  personality  persists. 

Freedom,  if  it  exists,  is  thus  merely  the  power  of  our  ulti- 
mate resistance,  the  fundamental  possibility  of  reaction  in 
opposition  to  external  forces;  and  this  power  of  resistance, 
while  it  may  be  aroused  or  excited  by  something  from  with- 
out, need  not  necessarily  be  conditioned  and  determined, 
as  is  the  ultimate  discharge  of  the  will,  by  the  impulse  that 
comes  to  prevail.  The  psychological  personality,  though 
in  its  essence  escaping  our  investigations,  may  impose  its 
own  law  of  causality.  It  cannot  be  denied  that  all  this 
amounts  to  a  contradiction.  But  contradiction  is  the  law 
of  all  nature,  and  this  break  of  the  law  of  causality  in  passing 
from  one  field  to  another  is  no  more  mysterious  than  its 
universal  application;  it  is  like  an  endless  chain  returning 
upon  itself,  since  it  ever  supposes  a  primary  impulse  origi- 
nating in  a  free  and  independent  cause,  which  arouses  the 
next  primary  cause,  and,  through  it,  all  the  rest. 

Freedom  thus  understood  and  considered,  in  relation  to 
each  of  our  particular  actions,  becomes  a  potentiality  and 
not  a  necessary  actuality.  It  is  through  the  influence  of 


§60]  DOCTRINE  OF  RESPONSIBILITY  179 

character  upon  our  feelings  that  we  are  able  to  direct  our 
actions,  and  by  virtue  of  this  mechanism  one  may  declare 
that  every  act  is  virtually  an  act  of  freedom.  But  to  deter- 
mine to  what  degree  it  really  is  free  is  a  point  that  will  always 
escape  us.1 

§  60.  Freedom  Essential  to  Punishment 

The  problem  of  freedom,  like  the  problem  of  the  soul, 
of  which  it  is  but  a  special  phase,  and  like  the  problem  of 
God,  is  one  which  cannot  be  demonstrated  by  reasoning, 
nor  established  by  scientific  induction,  but  which  demands 
other  modes  of  proof,  which  are,  however,  not  essentially 
different  from  those  that  serve  to  convince  us  of  the  ob- 
jective reality  of  the  external  objects  perceived  by  our  senses. 
To  believe  in  the  latter  requires  the  same  act  of  faith  in 
regard  to  the  data  of  our  external  senses  as  is  the  act  of 
faith  demanded  of  our  inner  senses  to  believe  in  those  other 
realities,  or,  let  us  say  idealities,  of  which  freedom  is  assur- 
edly a  part.2 

1  In  reality  this  conception  differs  more  from  the  traditional  one  through 
the  psychological  mechanism  of  freedom  than  through  its  effect.     To  con- 
sider an  extreme  case,  if  one  wishes  to  take  account  of  the  purely  theological 
doctrines,  and  particularly  of  those  of  Catholic  theologians,  concerning  this 
problem  of  transcendental  metaphysics,  one  may  refer  to  an  important  thesis 
of  P.  Frins  (S.  J.),  "De  actibus  humanis  ontologice  et  psychologice  consid- 
eratis"  (Freiburg-in-Breisgau,  1897),  No.  97,  and  seq.,  p.  116,  seq.   Within 
the  realm  of  more  modern  philosophy,  characterized  by  the  most  advanced 
scientific  spirit,  see  the  excellent  work  of  M.  Fonsegrive,  "Essai  sur  le  libre 
arbitre."    Consult  also  Desdouits,  "La  Responsabilite  morale,"  Paris,  1896. 
But  the  two  authoritative  works  are  those  already  cited  of  M .  Fonsegrive, 
and  the  older  thesis  of  M.  Levy-Bruhl,  "L'Idee  de  responsabilite." 

2  On  these  points  see  the  excellent  preface  of  M.  Brunetiere,  to  the  trans- 
lation of  Mr.  Balfour's  "Foundations  of  Belief";  and  the  articles  of  M. 
Maurice  Blondel,  "Les  exigences  rationelles  de  la  pensee  contemporaine  en 
matiere  d'apologetique  et  la  methode  de  la  philosophic  dans  1'etude  du 
probleme  religieux,"   published  in   the   Annales  de  Philosophic  chretienne 
(January,  1896),  Vol.  XXXIII,  p.  337,  seq.;  and  on  these  articles  the  study 
of  P.  Laberthonnibre,  "Le  probleme  religieux"  in  the  same  Review,  1897. 
See  also  M.  Payot,  "De  la  croyance"  (Paris,  F.  Alcan,  1896). 


180         INDIVTOUALIZATION  OF  PUNISHMENT       [§  60 

Instinctive  convictions  that  differ  from  scientific  cer- 
tainty are  equally  indispensable;  they  do  not  command  the 
universal  adherence,  the  objective  certitude,  if  we  may  so 
speak,  that  attaches  to  the  truths  of  scientific  observation. 
The  certitude  thus  involved  is  more  distinctively  subjective 
and  individual.1  And  this  is  of  capital  importance  for  penal 
law.  It  is  doubtless  sufficient,  in  order  to  regard  freedom 
as  the  basis  of  penal  law,  that  the  idea  of  freedom  shall  be 
susceptible  of  a  proof  appropriate  to  our  nature;  at  all  events, 
let  us  take  this  for  granted.  However,  such  conviction  re- 
mains a  personal  issue,  even  though  considered  as  universally 
available.  For  its  basis  of  practical  application  penal  law 
cannot  use  a  conception  that  evades  scientific  investigation 
and  belongs  to  the  realm  of  faith. 

We  thus  reach,  by  a  different  path,  the  important  truths 
derived  from  the  study  of  history  and  popular  opinion.  We 
conclude  that  the  conception  of  freedom  determines  the 
character  of  the  punishment;  that,  without  it,  punishment 
can  be  neither  a  penalty  nor  a  measure  of  social  disapproval; 
indeed,  that  it  falls  to  the  level  of  the  brutal  measures  of 
protection  taken  against  wild  beasts,  against  the  insane,  or, 
in  former  days  of  private  vengeance,  against  the  conquered 
and  subjugated  enemy.  It  is  a  return  to  barbarism.  If  then 
this  ideal  conception  is  sufficient  to  preserve  the  specific 
character  of  punishment,  one  need  not  go  further.  The  ap- 
plication of  punishment  thus  justified  as  a  punishment,  by 
virtue  of  the  possible  condition  of  freedom  to  which  it  refers, 
does  not  depend  upon  the  degree  of  freedom  ascertained  to 
be  present.  The  degree  of  punishment  is  only  nominally 
and  legally  connected  with  the  responsibility  for  the  act.  It 
should  refer  practically  and  effectively  to  the  potential 

1  See  an  interesting  study  by  Erich  Adickes,  "Wissen  und  Glauben,"  in 
the  Deutsche  Rundschau  (January,  1898),  p.  86,  seq.,  and  principally  p.  93. 


§60]  DOCTRINE  OF  RESPONSIBILITY  181 

criminality  of  the  individual.  The  conception  of  punishment 
implies  responsibility.  One  must  believe  in  responsibility 
in  order  that  a  measure  taken  against  an  offender  shall  be  a 
punishment.  But  the  application  of  punishment  is  no  longer 
a  matter  of  responsibility  but  of  individualization.  It  is  the 
crime  that  is  punished;  but  it  is  the  consideration  of  the 
individual  that  determines  the  kind  of  treatment  appropri- 
ate to  his  case.  Responsibility  as  the  basis  of  punishment, 
and  individualization  as  the  criterion  of  its  application:  such 
is  the  formula  of  modern  penal  law.  The  era  of  responsibility 
is  completed;  that  of  individualization  is  beginning.  This 
does  not  mean  the  renunciation  of  the  idea  of  responsibility, 
but  only  the  renunciation  of  the  dangerous  and  puerile  fiction, 
whereby  positive  and  practical  applications 1  were  derived 
from  merely  abstract  premises. 

1  All  this  has  already  been  well  set  forth  by  M .  Cuche  in  an  able  article 
published  in  the  Annales  de  I' University  de  Grenoble,  1897 —  a  valuable  au- 
thority in  support  of  the  argument  here  upheld.  Cuche,  "De  la  possibility 
pour  l'£cole  classique  d'organiser  la  repression  penale  en  dehors  du  libre 
arbitre"  (Grenoble,  1897).  The  same  ideas  have  been  taken  up  again  by 
M.  Cuche  in  the  "Traite  de  science  et  de  legislation  penitentiaires"  (Intro- 
duction a  la  science  penitentiaire,  chap.  1 :  les  fonctions  de  la  peine,  p.  36, 
seq.).  See  also  a  report  by  M.  Cuche  at  the  International  Congress  of  com- 
parative law  held  at  Paris  in  1900  (Revue  penitentiaire,  1900,  p.  1145,  seq.). 
I  note  also  an  excellent  thesis  by  M .  G.  Mabille,  "  De  la  question  de  discerne- 
ment  relative  aux  mineurs  de  seize  ans  "  (Paris,  1898),  in  which  I  find,  not 
without  a  certain  personal  satisfaction,  the  support  of  these  views.  They 
are  there  presented  with  remarkable  clearness  and  effect.  See  particularly 
p.  62,  seq.,  and  the  conclusion,  p.  155.  Consult  the  able  works  of  Dr.  Grasset, 
already  cited,  p.  98,  note. 


CHAPTER  VII 

RESPONSIBILITY  AND  INDIVIDUALIZATION 

§  61.  Freedom  in  the  Penal  Codes. 

§  62.  Social  and  Personal  Aspects  of  Punishment:  their  Legal  Recognition. 

§  63.  The  Conception  of  Punishment. 

§  64.  Society's  Interest  in  Punishment ;  Crime  and  Degradation. 

§  65.  The  Moral  Purpose  of  Individualized  Punishment. 

§  66.  Ecclesiastical  Law  and  Individualization. 

§  67.  Examples  in  Penance  and  Clemency  for  Special  Crimes. 

§  68.  Individualization  in  French  Codes:  Political  Crimes. 

§  69.  Individualization  in  Deportation. 

§  70.  Individualization  in  Short-term  and  Long-term  Sentences. 

§  71.  The  System  of  Parole:  its  Faulty  Application. 

§  61.  Freedom  in  the  Penal  Codes 

THESE  newer  conceptions  should  bring  about  a  revival  of 
interest  in  the  French  penal  code  of  1810,  —  not  the  penal 
code  as  distorted  by  false  modern  classicists,  but  that  of 
the  original  classicists.  This  remains  the  model  of  its  kind 
and  requires  but  little  to  put  it  in  line  with  contemporary 
progress.  The  possibility  of  punishment  assumes  the  poten- 
tial condition  of  freedom;  such  is  its  postulate  throughout. 
But  the  determination  of  what  is  thus  assumed,  the  penal 
code  does  not  leave  to  the  decision  of  the  judge.  It  does  not 
even  mention  the  term  "  freedom;  "  it  remains  outside  of,  and 
does  not  invade  penal  law.  It  makes  freedom  exert  its  in- 
fluence from  above  as  a  comprehensive  conception.  It  does 
not  make  freedom  a  concrete  datum  to  be  legally  established. 
This  is  why  the  penal  code  of  1810  —  not  that  of  the  neo- 

classic  theories,  but  the  penal  code  in  its  original  and  best 

182 


§  61]  RESPONSIBILITY  183 

form  —  has  remained,  or  has  once  more  become,  the  most 
modern  of  penal  legislations.  Undoubtedly  the  penal  code 
of  1810  has  serious  defects,  of  which  the  principal  is  its 
assumption  of  the  potential  state  of  freedom  in  every  adult 
of  sound  mind,  and  its  further  assumption  of  the  identity  of 
freedom  and  responsibility.  The  latter  it  holds  by  reason 
of  the  unity  of  the  will,  which  it  considers  as  a  neutral  force 
entering  into  each  volition;  from  this  it  infers  that  the 
same  crime  should  carry  the  same  punishment.  That  is  an 
untenable  conception.  The  assumption  of  freedom  thus 
conceived  stands  in  the  way  of  the  individualization  of 
punishment.  There  thus  arises  an  incompatibility  between 
responsibility  and  individualization;  and  this  affected  the  neo- 
classic  position  in  its  attempt  to  embody  the  idea  of  respon- 
sibility in  the  procedures  of  individualization.  But  this 
fiction  became  inacceptable,  and  such  a  state  of  things  could 
not  continue.  A  return  to  the  penal  code  was  made  neces- 
sary, not  to  set  up  responsibility  against  individualization, 
but  to  combine  the  two.  The  former,  as  it  appeared  in  the 
penal  code,  was  in  a  measure  a  fundamental  and  compre- 
hensive conception,  determining  the  character  of  the  exer- 
cise of  penal  justice;  the  latter  was  assigned  the  part  of  the 
active  and  inspiring  motive  of  the  practical  organization  of 
punishment  and  of  its  application. 

If  freedom  is  thus  a  condition  of  the  personality  rather 
than  an  act  of  will,  it  is  this  condition  that  punishment  should 
accept  as  a  basis  and  a  standard;  and  the  conception  of  free- 
dom, far  from  being  set  up  against  an  individualization  based 
upon  the  existence  of  criminal  condition,  argues  in  favor  of 
such  process  of  individualization  in  its  most  subjective  form. 
It  favors  it  by  its  opposition  to  the  view  of  the  older  system, 
in  which  the  responsibility  of  the  individual  was  made  de- 
pendent upon  an  abstract  will  exercised  in  the  crime,  a  ficti- 


184         INDIVTOUALIZATION  OF  PUNISHMENT       [§62 

tious  personality  considered  at  a  single  moment  of  existence. 
It  sets  in  its  place  the  entire  personality  in  its  unity  and 
integrity,  viewed  as  the  active  force  of  the  moral  nature,  con- 
sidered as  capable  of  moral  conduct.  The  distinction  is  fun- 
damental. In  the  newer  view  the  personality  qualifies  for 
moral  action,  and  becomes  amenable  to  a  precise  psycho- 
logical analysis. 

§  62.   Social  and  Personal  Aspects  of  Punishment :  their  Legal 

Recognition 

In  this  view  punishment  retains  its  specific  character  and 
thus  remains  a  punishment  in  the  traditional  sense  of  the 
word,  but  at  the  same  time  it  becomes  a  measure  of  social 
protection;  and  in  addition,  the  penal  law  retains  in  part  its 
objective  aspect.  The  purpose  is  not  to  substitute  a  purely 
subjective  examination  for  the  classic  system  of  offenses 
and  legal  punishments  but  to  combine  the  two.  It  may 
further  be  noted  that  the  attitude  toward  the  objective  side 
of  punishment  is  not  quite  that  represented  by  Liszt's  theory; 
for  he  considers  it  as  a  practical  concession  to  guarantee  per- 
sonal freedom.  So  long  as  one  holds  to  the  principle  of  moral 
freedom  the  conception  of  penalty  must  be  retained;  and 
the  objective  point  of  view  follows  directly  from  the  notion 
of  penalty.  Under  the  conception  of  freedom  one  is  doubtless 
responsible  morally  and  religiously  for  what  one  is,  but  so- 
cially one  is  responsible  only  for  what  one  does.  Freedom, 
considered  as  a  personal  capacity,  is  correlated  with  the  re- 
sponsibility for  the  actions  committed,  since  they  are  the 
issue  of  such  moral  and  mental  personality.  But  socially, 
it  is  through  his  actions  that  the  individual  injures  society. 
Society  does  not  control  what  he  is,  for  it  must  respect  his 
freedom;  it  acquires  authority  over  him  only  through  what 
he  does;  it  has  authority  only  over  his  actions.  Indeed,  in- 


§  62]  RESPONSIBILITY  185 

dividual  responsibility,  which  is  purely  moral  or  religious, 
must  not  be  confused  with  social  responsibility,  which  is 
involved  only  to  the  extent  to  which  society  controls  indi- 
vidual liberty;  and  such  authority  is  legitimately  applied 
only  through  the  consequence  of  an  action  harmful  to  so- 
ciety. But  at  the  same  time  that  an  act  has  been  committed 
which  confers  upon  society  the  right  of  intervention,  evi- 
dence has  been  given  of  the  danger  to  which  one  of  its  mem- 
bers may  expose  it;  and  the  penalty,  which  it  is  the  duty  of 
society  to  exact  for  the  act  done,  must  be  so  disposed  as  to 
make  it  a  safeguard  against  future  exposure. 

The  idea  of  penalty  implies  that  punishment  is  the  ex- 
pression of  social  disapproval,  the  expression  of  public  con- 
demnation based  upon  the  disturbance  and  excitement 
brought  about  by  the  crime.  This  implies  that  there  is 
crime  and  also  that  the  social,  and  therefore  the  formal,  as- 
pect of  the  crime  must  be  taken  into  consideration.  Socially 
the  crime  is  of  account  only  through  its  consequences,  and 
not  through  its  antecedents  or  causes.  A  murder,  whatever 
may  be  its  cause  or  whatever  the  motive  that  accounts  for 
it,  remains  a  murder  so  far  as  concerns  the  social  community 
in  which  it  has  occurred;  that  is,  it  remains  the  supreme 
violation  of  personal  right.  If  it  is  judged  in  terms  of  the  in- 
jury effected,  the  consideration  of  purpose  and  motives 
disappears  altogether.  In  so  far  as  it  may  become  the  center 
of  a  series  of  waves  of  suggestion,  to  use  the  apt  expression 
of  M.  Tarde,  it  is  significant  only  through  its  results  and  its 
formal  status.  By  virtue  of  its  legal  definition  it  acquires  a 
real  status  in  the  law.  The  law  can  prescribe  and  define 
offenses  only  in  formal  terms  and  must  disregard  their  con- 
crete setting  and  their  detailed  circumstances.  But  the  ap- 
plication of  punishment  requires  the  consideration  not  of 
the  abstract  crime  and  its  legal  status,  but  of  the  concrete 


186         INDIVTOUALIZATION  OF  PUNISHMENT       [§  62 

crime  with  all  its  complex  psychological  factors,  which  in 
turn  must  be  ascertained,  judged,  and  punished.  At  present 
we  are  treating  of  responsibility  only  from  the  social  point 
of  view,  and  of  the  penalty  in  terms  of  the  social  injury. 
This  implies  that  crime  should  be  defined  by  its  formal 
status  and  taxed  according  to  its  social  value;  that  is,  accord- 
ing to  its  objective  gravity  for  society.  The  meaning  of  this 
is  definite:  for  an  action  to  be  punishable  and  justify  prose- 
cution its  formal  features  must  correspond  to  one  of  the 
legal  prescriptions.  It  is  the  crime  as  defined  that  alone  per- 
mits prosecution,  but  it  is  the  criminal  act,  or  rather  the 
agent,  the  author  of  the  crime,  that  should  be  the  object  of 
punishment.  The  objective  aspect  of  crime  determines  the 
prosecution,  and  the  subjective  aspect  determines  the  pun- 
ishment. Such  is  the  division  to  be  made  between  the  two 
considerations.  A  place  remains  and  should  always  remain 
for  the  objective  side  of  crime  and  punishment. 

This  is  essential  not  alone  for  the  determination  and  war- 
rant of  the  prosecution  but  equally  for  setting  what  is  called 
the  legal  punishment.  The  legal  punishment  is  at  first  a 
maximum.  It  is  the  limit  set  to  the  discretion  of  the  judge. 
The  abolition  of  such  upper  limit  will  never  be  permitted, 
but  we  are  quite  willing,  as  has  been  done  in  the  Dutch  penal 
code,  to  abolish  the  minimum.  The  system  of  ancient  law 
that  permitted  the  judge  to  go  beyond  the  maximum  legal 
punishment,  or  rather,  to  choose  among  the  legal  punish- 
ments by  taking  the  most  severe,  even  though  it  may  not 
have  been  a  punishment  prescribed  for  the  particular  crime, 
would  be  in  total  contradiction  with  the  principles  of  our 
public  law.  Thus  legal  punishment  is  primarily  an  upper 
limit,  but  it  is  otherwise  significant;  it  is  a  social  appraisal 
of  the  deed  considered  as  a  crime;  it  is  a  tax.  If  the  penalty 
aspect  persists,  the  penalty  should  be  proportional  to  the 


§  63]  RESPONSIBILITY  187 

objective  gravity  of  the  deed.  It  must  then  have  a  legal  tax 
serving  as  a  scale  to  measure  society's  interest  in  the  preven- 
tion of  that  crime.  Thus  there  must  be  a  proportionate  social 
indemnity,  precisely  as  a  personal  indemnity  is  appraised 
according  to  the  injury  done. 

For  this  reason,  apart  from  the  demands  of  public  law, 
there  must  continue  to  be  a  scale  of  offenses  with  a  legal 
maximum  of  punishment.  But  this  scale  is  only  a  relative 
one,  indicating  the  maximum  for  each  crime;  and  the  judicial 
sentence  for  each  particular  crime  follows  a  similar  relative 
scale  in  terms  of  the  punishments.  It  is  not  an  exact  dose 
that  can  be  applied  to  the  letter;  it  is  a  relative  and  general 
prescription.  It  but  indicates  to  the  judge  in  what  degree 
and  in  what  proportion,  in  each  particular  case,  he  should 
consider  the  social  gravity  of  the  crime.  Yet  the  gravity  of 
the  crime  is  to  be  considered  only  secondarily,  after  the  fun- 
damental consideration  which  remains  dominant  in  the  ap- 
plication of  punishment;  namely,  that  of  the  individual  con- 
cerned and  the  degree  of  morality  which  he  retains.  As  will 
appear  later,  the  subjective  consideration  of  the  individual 
determines  the  nature  of  the  punishment;  and  the  objective 
gravity  of  the  crime  is  also  to  be  taken  into  consideration  as 
one  but  not  the  only  factor  entering  to  determine  the  term 
of  punishment. 

§  63.  The  Conception  of  Punishment 

The  system  of  individual  adjustment  requires  that  the 
nature  of  the  punishment  should  be  determined  by  the 
nature  of  the  individual.  This  is  the  very  definition  of  in- 
dividualization.  Punishments  should  be  differentiated  with 
reference  to  the  classification  of  criminals,  and  not  to  the 
categories  of  crime.  But  the  term  of  punishment  will  depend 
also,  in  greater  or  lesser  measure,  and  in  accord  with  the  rela- 


188         INDIVIDUALIZATION  OF  PUNISHMENT       [§63 

live  scale  provided  by  the  penal  law,  upon  the  objective 
gravity  of  the  crime.  Such  is  the  accepted  compromise  be- 
tween individualization  as  the  criterion  for  the  application 
of  punishment,  and  its  relative  objective  status,  which  is  like- 
wise to  be  retained. 

It  is  well  worth  while  to  note  that  this  combination  stands 
in  complete  harmony  with  a  legitimate  attitude  towards  the 
problem  of  freedom  itself.  Freedom  is  not  a  necessary  datum 
indispensable  to  the  practical  construction  of  penal  law;  it  is  a 
moral  conception  based  upon  an  individual  belief,  a  datum 
of  the  personal  consciousness.  Thus  it  bears  only  upon  the 
conception  of  punishment  and  the  notion  thereof  to  be  en- 
tertained. It  does  not  bear  upon  'ts  administration.  The 
administration  of  punishment  considers  actual  social  needs 
with  little  concern  for  our  theoretical  beliefs.  It  grows  out  of 
criminal  sociology.  But  while  criminal  sociology  operates 
subconsciously  those  who  apply  its  laws  are  influenced  by 
moral  conceptions,  and  it  is  to  such  conceptions  that  punish- 
ment must  be  adjusted.  To  keep  in  touch  with  current  be- 
liefs punishment  must  be  given  a  rational  setting.  The 
conception  of  freedom  and  responsibility  must  be  retained  in 
the  administration  of  punishment  only  as  a  conception,  and 
it  must  not  interfere  with  the  requirements  of  social  protec- 
tion. There  should  be  organized  a  protective  penalty  for 
society  against  responsible  evil-doers,  and  a  penalty  so  far 
as  there  is  responsibility. 

But  a  further  important  point  remains.  The  value  to  be 
ascribed  to  the  psychological  aspect  of  punishment  has  been 
considered;  accordingly,  in  a  way,  the  conception  of  punish- 
ment may  be  exclusively  reserved  for  such  measures  as  have 
an  influence  upon  the  psychic  personality.  Punishment 
does  not  become  equivalent  to  any  and  every  punitive  meas- 
ure based  upon  responsibility.  It  comprises  only  such 


§  64]  RESPONSIBILITY  189 

measures  as  in  their  application  to  responsible  agents  may 
be  directed  to  those  susceptible  to  psychological  appeal;  and 
this  may  be  properly  interpreted  to  include  all  the  results 
that  may  be  expected  to  come  from  punishment.  Such  was 
the  view  of  ecclesiastical  law,  as  well  as  of  other  systems,  in 
regard  to  the  function  of  correction  and  reform.  It  was  also 
the  position  of  Feuerbach  based  upon  the  curious  notion  of 
a  psychological  balance  of  forces:  as  punishment  was  the 
threat  of  a  given  degree  of  suffering,  it  should  stand  in  the 
mind  of  a  man  contemplating  a  crime  as  the  exact  balance 
of  the  profit  which  he  expects  of  its  accomplishment.  But 
there  is  yet  another  aspect  of  the  problem,  too  commonly 
overlooked.  Before  knowing  how  the  execution  of  the  pun- 
ishment will  affect  the  individual  concerned,  one  must  know 
(for  the  one  depends  upon  the  other),  how  he  will  be  affected 
by  the  very  idea  of  being  condemned  to  punishment;  and  this 
question  involves  yet  another,  which  is  but  the  public  phase 
of  the  same,  namely,  what  impression  is  the  condemnation 
going  to  produce  upon  others? 

§  64.   Society's  Interest  in  Punishment ;  Crime  and 
Degradation 

The  future  of  penal  reform  centers  about  this  question, 
for  sociology  has  definitely  established  the  influence  of  social 
community  upon  social  adjustment.  Adjustment  to  a  so- 
cially organized  group  occurs  only  when  there  is  a  feeling 
of  a  certain  similarity  of  character;  a  similarity  that  is 
interpreted  legally  as  the  conception  of  equality  with  the 
rest  of  the  community.  Any  deviation  from  this  standard 
implies  the  existence  of  a  difference,  a  more  or  less  radical 
withdrawal,  an  exclusion;  hence  a  social  mal-adjustment. 
The  psychological  effect  of  a  lapse  from  social  standards 
upon  a  member  of  a  social  group  is  the  loss  of  the  feeling 


190         INDIVIDUALIZATION  OF  PUNISHMENT        [§64 

of  self-esteem,  and  frequently  what  is  called  shame  —  and 
shame  should  not  be  confused  with  remorse  —  is  but  the 
first  realization  of  such  personal  lapse  and  the  effect  thereof. 
No  character  can  resist  it.  Society  may  pertinently  say: 
Whoever  is  not  with  me  is  against  me.  There  are  ever  two 
groups:  the  pros  and  the  cons,  those  on  the  one  side  and 
those  on  the  other,  organisms  of  a  different  structure  but 
a  like  power.  One  may  belong  to  the  party  of  the  opposition 
by  natural  tendency,  or,  possibly,  by  the  emotional  effect 
of  the  first  offense.  But  if  it  happens  that  neither  one's 
natural  attitude  towards  crime  nor  the  reaction  subsequent 
to  the  actual  commission  of  a  crime  is  a  sufficient  protection 
against  crime,  there  remains  yet  another  alternative,  a  last 
.chance  of  losing  or  of  saving  one's  soul,  the  choice  of  re- 
maining a  useful  member  of  society  or  of  passing  over  to  the 
enemy's  camp.  This  choice  depends  upon  the  psychological 
effect  of  punishment  ;  to  which  camp  will  punishment  send 
one? 

Now  in  this  connection  one  may  indicate  three  or  four 
tendencies  corresponding  to  various  historical  aspects  of 
punishment.  The  first  belongs  to  the  primitive  theory  of 
criminal  risk.  What  we  look  upon  as  crime  appeared  in 
primitive  conditions  as  a  normal  condition  of  life  in  which 
one  simply  took  his  chances.  There  was  no  degradation 
in  crime.  A  cyclist  who  runs  into  and  injures  a  pedestrian 
pays  the  damages,  and  is  not  considered  disgraced.  No 
one  would  think  of  him  as  wicked.  The  same  is  true  of  the 
soldier  of  the  period  of  private  wars.  He  agreed  to  a  settle- 
ment and  paid  the  Wergild;  and  clearly  the  payment  of 
the  Wergild  did  not  disgrace.  Ecclesiastical  law,  at  the 
very  time  when  the  conception  of  sin  and  responsibility 
was  spreading,  presents  a  conception,  which,  along  with 
considerable  differences,  has  points  of  resemblance  with 


§  64]  RESPONSIBILITY  191 

the  former  view.  Crime  constitutes  a  fall,  but  a  fall  that 
does  not  degrade.  Christianity  has  impressed  upon  the 
world  the  notion  of  sin,  which  it  has  made  the  normal  con- 
dition of  humanity.  We  all  are  more  or  less  sinners,  and 
among  those  fundamentally  much  in  the  same  condition, 
sin  can  arouse  only  commiseration  and  pity;  it  does  not 
arouse  aversion.  The  sinner  is  a  brother  to  be  helped;  he 
is  not  an  outcast  from  the  community.  Heresy  alone  can 
break  the  common  tie.  As  between  those  united  in  a  com- 
mon faith,  a  lapse,  even  a  crime,  does  not  degrade.  One 
should  chastise,  and  chastise  ruthlessly;  but  punishment 
implies  the  certainty  of  reinstatement  and  not  an  ulti- 
mate ruin.  And  in  communities  that  have  retained  some- 
thing of  this  monastic  spirit,  it  is  indeed  strange  to  observe 
the  feeling  of  tolerance  for  wrong-doing  so  long  as  faith  is 
professed.  Many  instances  of  tolerated  fraud  thus  find 
explanation,  but  this  circumstance  proves  as  well  the  per- 
sistence of  the  curious  social  fact  that  crime  in  itself  does 
not  degrade. 

The  association  of  degradation  with  punishment  appears 
in  the  rationalist  theory  of  responsibility.  If  every  offense 
is  the  result  of  a  free  but  perverted  choice,  punishment  be- 
comes the  chief  clue  to  the  sinners  of  this  world.  It  serves 
to  mark  the  division  between  those  of  evil  intent  and  those 
regarded  as  righteous.  For  the  former,  penalty  becomes 
a  burden  of  shame  and  disgrace,  which  should  be  appor- 
tioned to  the  criminal  intent;  and  the  intent  may  be  regarded 
as  the  free  expression  of  evil,  since  it  is  the  issue  of  a  choice 
made  in  full  and  absolute  freedom.  And  since  wrong-doing 
is  represented  as  a  social  offense  and  not  as  a  personal  sin, 
the  conception  of  fraternity  and  community  in  sin  disap- 
pears and  gives  place,  somewhat  as  depicted  by  primitive 
painters,  to  the  idea  of  a  separation  between  the  righteous 


192          INDIVTOUALIZATION  OF  PUNISHMENT        [§  65 

and  the  vicious,  between  those  accepted  by  society  and 
those  rejected.  Such  is  the  army  of  the  wicked  that  like- 
wise forms  an  organized  portion  of  society,  scattered,  it  is 
true,  but  for  this  reason  more  elusive  and  more  dangerous. 
The  new  theory  of  temibilite  (formidability)  is  hard- 
ly more  respectful  of  the  self-esteem  of  the  fallen  man. 
Its  classifications  may  indeed  recognize  the  possibility  of  a 
criminal  being  an  honest  man  who  is  the  author  of  a  mate- 
rial crime  without  being  the  embodiment  of  criminality.  In 
his  case  punishment  becomes,  as  in  the  Salic  law,  the  pay- 
ment of  a  risk  incurred.  In  a  theory  that  does  not  believe 
in  freedom  in  any  form  there  is  no  place  left  for  self-esteem. 
To  retain  the  feeling  of  self-esteem  there  must  be  self-control 
and  a  consciousness  of  will  and  freedom.  On  the  other 
hand,  without  freedom  there  is  no  hope  of  a  return  to  virtue; 
and  thus  arises  the  tendency  to  recognize  only  criminals 
by  nature,  to  regard  them  ail  as  beset  with  an  incurable 
criminality,  as  belonging  to  the  lost.  They  form  a  part  of 
the  increasing  army  of  the  wicked,  yet  further  increased  by 
the  moral  effect  of  the  hopelessness  here  attaching  to  crim- 
inality. It  becomes  an  indelible  taint.  The  criminal  is  of 
another  race;  he  is  the  savage  come  to  life  again,  and  is  to  be 
hounded  without  mercy;  he  is  the  extreme  anti-social  being, 
wholly  refractory  to  the  requirements  of  social  life. 

§  65.  The  Moral  Purpose  of  Individualized  Punishment 

In  a  view  that  combines  responsibility  and  individual- 
ization  these  trends  of  opinion  are  likely  to  be  modified  in 
deference  to  traditional  institutions.  Thus  a  conditional 
sentence  like  parole  carries  with  it  the  benefit  of  the  toler- 
ance attaching  to  the  "penal  risk"  view  of  crime.  Parole 
is  just  such  a  punishment  that  does  not  degrade,  for  it  was 
devised  for  that  purpose.  The  same  applies  even  more 


§  65]  RESPONSIBILITY  193 

strongly  to  deterrent  punishments  and  merely  technical 
penalties,  which  are  imposed  upon  offenders  with  no  crim- 
inal tendency.  At  the  other  extreme  there  is  the  army  of 
hopeless  outcasts,  unfortunately  but  undeniably  on  the  in- 
crease. But  it  is  likewise  true  that  so  long  as  we  believe 
in  freedom  and  in  the  value  of  a  personal  effort,  we  shall 
hold  to  the  hope  of  a  possible  regeneration.  We  do  not 
close  the  door  upon  any  one  for  whom  a  return  to  the  con- 
ditions of  social  life  is  possible.  And  this  possibility,  in  the 
absence  of  a  proof  to  the  contrary,  we  may  accept  as  a  defi- 
nite principle — analogous  to  certain  presumptions  of  civil 
law.  Lastly,  there  is  the  rank  and  file  of  the  army,  the 
battalions  of  true  delinquents,  susceptible  to  remedial  pun- 
ishments. They  are  not  to  be  discouraged  nor  degraded; 
their  sense  of  personality  and  self-esteem  is  to  be  restored 
and  not  destroyed,  for  self-distrust  leads  to  vice.  It  should 
be  recognized  that  the  critical  point  lies  in  the  type  of 
individualization.  A  severe  punishment  imposed  without 
probing  the  offender's  conscience  may  in  some  respects  be 
considerate  of  the  personality,  but  at  the  same  time  it  is 
also  considerate  of  vice  and  criminality.  It  is  as  though 
society,  indifferent  to  the  past  immorality  and  wickedness 
of  its  enemies  and  exploiters,  should  say:  "Let  them  pay 
and  return  to  their  careers."  Such  a  system  encourages 
crime;  it  is  made  for  those  who  scoff  at  virtue  and  boast  of 
vice.  Such  self-esteem  it  is  not  important  to  preserve.  On 
the  contrary  punishment  must  carry  with  it  something 
deterrent,  by  virtue  of  that  social  force  that  differentiates 
individuals  by  their  character,  and  self-esteem  of  the  type 
expressed  by  the  vanity  of  vice  will  in  that  event  find  itself 
decidedly  at  a  discount.  As,  ordinarily,  criminals  of  this 
type,  even  when  susceptible  to  reform,  have  hardly  any 
other  form  of  self-esteem,  the  loss  thereof  is  not  to  be  re- 


194         INDIVIDUALIZATION  OF  PUNISHMENT       [§  65 

gretted.  But  to  build  up  the  other  and  true  self-esteem 
that  consists  in  believing  oneself  fundamentally  and  con- 
scientiously the  equal  of  honest  persons,  requires  the  revival 
of  the  feeling  of  virtue;  and  such  these  criminals  no  longer 
possess.  It  is  not  the  brand  which  they  bear  that  affects 
their  moral  character,  but  the  discipline  to  which  they  are 
subjected  that  alone  can  restore  a  sense  of  virtue  and  of 
self-confidence. 

A  reformatory  punishment  imposed  upon  the  weak  and 
the  victims  of  our  extreme  civilization  can  hardly  be  effec- 
tive except  through  the  feelings  of  deep  compassion  that 
were  appealed  to  by  the  ecclesiastical  law.  A  man  who  could 
be  saved  was  not  treated  as  an  outcast.  His  regeneration 
was  to  be  sought;  he  was  not  to  be  abandoned  to  the  army 
of  the  wicked,  but  was  to  be  reinstated  among  the  honest. 
Society  was  not  to  brand  him  with  an  indelible  stigma. 
Upon  such  basis  rested  the  fellow-sympathy  that  avoided 
degradation  and  a  definite  social  exclusion.  In  a  system 
based  upon  free  will,  that  regards  every  crime  as  a  freely 
made  compact  with  evil  as  formerly  it  was  made  with  the 
devil,  every  crime  becomes  a  permanent  mark  of  disgrace; 
but  a  system  admitting  a  more  general  freedom,  without 
assuming  the  concrete  freedom  of  any  given  act,  approaches 
this  religious  fellowship,  that  believed  in  a  like  temptation 
for  all  and  assumed  for  all  a  like  capacity  to  be  free.  The 
sense  of  social  estrangement  is  less  marked.  There  remains 
a  bond  of  attachment  to  the  social  organism  in  the  feeling 
that  all  of  us  may  qualify  for  a  life  of  freedom,  and  no  one 
need  necessarily  remain  in  a  career  of  crime  and  in  the  con- 
ditions that  lead  to  it.  The  restoration  to  freedom  requires 
an  appeal  to  the  inmost  nature  and  its  liberation  through 
punishment.  Crime  seems  thus  conditioned  by  the  deter- 
minism of  human  fate  while  yet  it  begins  with  freedom  of 


§  65]  RESPONSIBILITY  195 

action.  It  is  due  to  this  determinism  that  there  arises 
a  fellowship  in  moral  unworthiness  that  may  develop  to  a 
fellowship  of  pity.  Yet  the  fundamental  freedom  of  action 
and  character  inspires  the  hope  of  an  ultimate  regeneration. 
This  very  hope  forms  a  bond  of  attachment  to  society,  which 
punishes  but  does  not  exclude.  Thereby  it  makes  possible 
the  restoration  of  self-esteem,  for  the  punishment  that  is 
to  restore  must  not  debase.  Punishment  should  make  a  man 
feel  his  moral  but  not  his  social  fall,  and  the  society  that 
inflicts  it  should  express  a  moral  condemnation  that  does 
not  definitely  degrade  or  cut  off.  The  psychological  effect 
of  punishment  should  be  directed  to  the  future  and  not  be 
obsessed  by  the  past.  The  constant  thought  of  remorse 
and,  still  more,  of  shame,  becomes  the  greatest  hindrance 
to  individual  regeneration.  Faith  in  the  future  remains 
the  sole  source  of  initiative  and  moral  progress,  even  for 
the  fallen,  indeed,  especially  for  them.1  Such  faith  leads 
to  a  more  comprehensive  view  of  freedom.  The  concrete 
loss  of  freedom  in  a  given  crime  should  not  involve  a  per- 
sistent and  oppressive  retrospect;  the  surviving  fount  of 
freedom  of  every  spiritual  nature  should  direct  endeavor 
to  the  future.  Such  is  and  must  be  the  place  of  the  psycho- 
logical effect  of  punishment  in  a  reformed  penal  law.  Such 
reform  involves  a  re-education  of  public  opinion,  and  to  this 
end  the  practical  application  of  punishments  based  upon 
a  strictly  psychological  classification  will  contribute  effec- 
tively. For  such  application  the  Berenger  law  may  success- 
fully serve  as  an  introduction. 

1  It  is  pertinent  to  apply  the  fine  words  of  St.  Paul :  "But  one  thing  I  do, 
forgetting  the  things  which  are  behind,  and  stretching  forward  to  the  things 
which  are  before,  I  press  on  toward  the  goal  unto  the  prize  of  the  high  call- 
ing." The  Epistle  of  Paid  the  Apostle  to  the  Philippians,  iii,  13-14.  One 
cannot  better  emphasize  the  duty  to  forget  the  past  and  to  consider  only  the 
future. 


196          INDIVIDUALIZATION  OF  PUNISHMENT        [§  66 

§  66.  Ecclesiastical  Law  and  Individualization 

We  have  still  to  review  the  position  of  ecclesiastical  law 
upon  these  issues,  considered  in  its  historical  role.  The 
association  of  the  idea  of  penalty  with  that  of  social  purpose 
may  be  reached  through  a  sociological  analysis  of  popular 
conceptions.  May  it  not  have  like  relation,  despite  the 
radical  difference  of  approach,  to  ecclesiastical  law?  To 
find  that  such  is  the  case  would  be  of  importance,  and  not 
merely  in  the  interests  of  historical  truth.  It  would  appear 
that  ecclesiastical  law  has  everything  to  gain  by  detaching 
its  origins  from  a  certain  spiritualistic  philosophy  with 
which  it  is  affiliated,  yet  which  is  fundamentally  an  aspect 
of  rationalism.1  However,  the  guardianship  of  the  good 
name  of  the  ecclesiastical  law  belongs  to  those  officially 
qualified  to  express  an  opinion.  We  are  concerned  only 
with  historical  evidence. 

And  first  of  all,  may  we  not  recall,  in  connection  with  the 
popular  as  well  as  the  traditional  conception  of  freedom, 
the  very  perplexing  parable  of  the  Gospel?  I  refer  to  that 
of  the  seed  cast  upon  good  soil,  that  increases  of  itself  by 
virtue  of  the  soil  that  has  received  it,  without  personal  effort 
and,  as  it  were,  in  complete  unconsciousness.  There  comes 
a  time  when  the  plant  has  grown  and  become  a  tree  with 
spreading  branches  wherein  rest  the  birds  of  the  air.2  Where 
then  does  individual  effort  enter?  Where  does  freedom, 
as  a  positive  act,  come  into  play?  Where  shall  we  observe 
the  appearance  of  responsibility  for  the  good  issue  that  re- 
sults? The  original  personality  is  the  sole  explanation;  it 
alone  creates,  by  a  force  inherent  in  its  nature  that  suffers 

1  In  regard  hereto,  and  under  a  title  that  explains  itself,  see  a  curious 
article  of  M.  I' Abbe  L.  Picard  (of  the  diocese  of  Lyon),  "De  1'insuffisance  du 
spiritualisme,"  published  in  the  Revue  du  Clerge  franyais,  1897,  p.  481,  seq. 

*  St.  Mark,  iv,  8,  26-28,  31-32. 


§  66]  RESPONSIBILITY  197 

no  interference  of  an  alleged  free  will.  The  soil  is  well  pre- 
pared; nothing  remains  but  to  deposit  therein  the  seed  that 
is  to  thrive.  The  sower  has  done  his  work,  the  germ  de- 
velops by  virtue  of  its  inherent  fertility.  It  is  a  purely 
organic  process.  Freedom  and  responsibility,  if  they  have 
any  part  in  the  personality,  are  a  part  of  the  whole  in  its 
unity,  and,  let  it  be  added,  in  its  variations  and  successive 
transformations.  But  we  do  not  observe  them  in  each  par- 
ticular action.  The  actions  taken  individually  are  the  fruits 
of  the  tree,  —  good  if  the  tree  is  good,  bad  if  it  is  bad. 

In  a  doctrine  of  this  kind  man  does  not  necessarily  appear 
as  free  in  his  actions  but  as  free  in  the  development  of  his 
moral  personality.  We  do  not  know  whether  freedom  is 
the  power  to  act  independently  of  every  antecedent  con- 
dition, but  for  man  it  is  the  power  to  act  on  the  basis  of  his 
moral  nature,  and  to  be  constantly  active  in  transforming 
and  improving  his  personality,  and  thus  in  determining, 
through  this  sequence  of  causes,  the  resulting  actions.  Free- 
dom may  be  the  power  to  prepare  the  soil,  to  make  it  good 
or  bad  and  to  conserve  it  as  the  depository  of  the  good, 
which  according  to  the  Gospels  is  made  a  part  of  one's  an- 
cestral or  rather  divine  inheritance.1  But  the  soil  once 
prepared,  nature  asserts  its  rights  and  the  fundamental 
law  of  physical  causality  prevails.  Freedom  prepares  the 
soil,  determinism  receives  the  seed  and  makes  it  fruitful. 
This  is  our  first  consideration. 

So  far  as  responsibility  appears  in  the  Gospels  it  is  never 
attached  to  an  act  considered  in  itself  as  the  product  of  the 
freedom  of  choice,  but  as  an  expression,  a  condition,  what 
we  now  call  a  state  of  mind.  The  expression  appears  in  St. 
Bernard:  "Et  enim  libertas  habitus  animi  liber  sui."  2  From 
this  results  the  triumph  of  a  state  of  faith.  The  predestina- 
1  St.  John,  i,  4,  9.  *  See  above,  p.  40,  note  1. 


198          INDIVIDUALIZATION  OF  PUNISHMENT        [§  66 

tion  of  the  apostolic  calling  has  no  other  foundation.  It  is 
the  reward  of  an  inner  latent  faith.1  The  same  holds  of  the 
miracles  of  the  Gospels.  They  are  the  reward  of  a  positive 
and  efficient  faith,2  and  to  this  state  of  faith,  as  revealed  in 
the  Gospels,  there  corresponds  a  state  of  grace  with  the 
dogmatic  interpretation  ascribed  to  it  by  St.  Paul.3  Per- 
sonalities, not  actions,  are  to  be  rewarded  or  punished;  and 
if  at  times  the  act  appears  as  the  object  of  penalty  —  the  sin 
committed  rather  than  the  state  of  sinning  —  this  must  be 
looked  upon  as  the  expression  and  issue  of  a  corrupt  per- 
sonality in  revolt  against  the  spirit  immanent  therein.  Is 
not  theological  teaching  merely  the  development  of  these 
views?  A  state  of  grace  or  a  state  of  sin  makes  the  distinc- 
tion between  the  righteous  and  the  wicked,  and  good  or  bad 
deeds  are  significant  only  as  the  consistent  expression  of  our 
inner  nature.  The  theologians  tell  us  that  sin,  as  such,  with- 
draws from  God;  it  leads  to  death.  This  is  doubtless  true; 
but  even  within  the  theological  position  there  has  not  been 
sufficiently  considered  the  subjective  factor  necessary  to 
bring  about  such  withdrawal.  This  factor  consists  far  less 
in  the  free  yielding  to  the  circumstances  of  the  action  than 
in  an  open  and  conscious  revolt  against  a  part  of  the  divine 
inheritance.  It  is  of  this  human  element  of  regeneration 
that  St.  Paul  speaks  as  living  and  moving  within  us,  from 
which  the  soul  withdraws  when,  by  a  critical  act,  it  rests  in 
the  common  human  element  of  sin.4  Is  not  this  the  true 
basis  of  the  theological  view? 

Such  is  the  general  impression  of  the  situation,  doubtless 

1  St.  John,  i/35-49;  iii,  19-21;  v.  88-44;  compare  with  viii,  34;  St.  Mark, 
ii,  5;  v.  34;  vii,  29;  x,  52;  St.  Matthew,  viii,  10-11;  ix,  2,  29. 

1  St.  Luke,  v,  5,  12-13;  St.  John,  iv,  50;  St.  Matthew,  ix,  22,  etc.  See 
preceding  note. 

*  See  the  Epistle  to  the  Romans,  especially  chapter  vi. 

4  St.  Paul:  Epistle  to  the  Romans,  vii,  18-24. 


§  67]  RESPONSIBILITY  199 

not  to  the  professional  theologian  with  his  acceptance  of  the 
objective  reality  of  theological  truths,1  but  as  it  appears  to 
one  who  looks  upon  theology  from  the  historical  side,  in  its 
relation  to  intellectual  movements  and  to  the  influence  which 
it  has  exercised  upon  the  growth  of  popular  opinion.  No  one 
with  a  sociological  interest  has  the  right  to  neglect  this  his- 
torical aspect. 

§  67.   Examples  in  Penance  and  Clemency  for  Special  Crimes 

If  we  set  aside  theology,  which  in  this  respect  forms  a  sort 
of  spiritual  psychology,  and  take  up  the  practical  organiza- 
tion of  society,  we  shall  see  that  ecclesiastical  law  is  but  the 
development  of  these  several  conceptions.  The  primitive 
law  of  the  church  is  comprised  in  the  penitential  reports;1 
and  these  distinctly  approach  the  position  of  the  Salic  law, 
yet  with  this  difference,  that  in  place  of  the  Wergild  there 
are  years  of  penance,  corresponding  to  each  of  the  deeds  con- 
cerned, —  so  many  years  of  penance,  as  it  were,  instead  of  the 
pieces  of  gold  exacted  by  the  Germanic  laws.  The  one  re- 
places the  other.  It  is  familiar  that  later,  with  the  practice 
of  indulgences,  the  pieces  of  gold  again  replaced  the  years  of 
penance.  From  the  rationalistic  position  of  the  freedom  of 
the  will  it  is  natural  enough  that  this  should  seem  scandal- 
ous. But  does  not  this  throw  light  upon  the  purely  super- 
ficial character  of  these  penances?  The  fine  thus  imposed 

1  As  an  example  of  the  intrinsically  theological  position  expressed  dog- 
matically, see  the  thesis  cited  above  by  P.  Prins,  "De  actibus  human  is," 
p.  116,  aeq. 

2  On  the  Penitential  Books,  see  Viottet,  "  Histoire  du  droit  civil  frangais," 
last  edition;  Schmitz,  "Die  Bussbiicher  und  die  Bussdisciplin  der  Kirche"; 
Henry  C.  Lea,  "  History  of  Auricular  Confession  and  Indulgences  in  the  Latin 
Church,"  Philadelphia,  1896;  and  a  remarkable  study  by  M.  A.  Baudinhon, 
on  the  subject  of  the  preceding  work,  in  the  "Histoire  de  la  Penitence  a 
propos  d'un  ouvrage  recent,"  which  appeared  in  the  Revue  d'histoire  et  da 
literature  religieusea,  Vol.  II,  1897,  p.  306  and  p.  496. 


200         INDIVIDUALIZATION  OF  PUNISHMENT       [§67 

is  wholly  objective  and  relative,  and  consequently  nominal; 
it  corresponds,  in  a  somewhat  symbolical  way,  to  the  ob- 
jective gravity  of  the  offense  and  to  the  reprobation  it  is 
likely  to  arouse.  The  penance  has  the  simple  purpose  of  ex- 
acting payment  to  make  good  the  offense  and  to  require 
its  confession  by  the  offender.  The  question  of  the  con- 
science and  that  of  the  moral  status  of  the  action  is  a  very 
different  one.  In  this  respect  the  action  is  but  secondary; 
the  paramount  consideration  is  the  return  to  a  moral  state, 
the  substitution  of  a  state  of  grace  for  one  of  sin.  To  that 
end  it  is  necessary  that  punishment  heals,  as  the  ecclesiastical 
expression  puts  it,  or  as  we  now  say,  reforms.  The  end  to 
be  attained  is  the  moral  reform  of  the  sinner,  and  in  the 
primitive  church  the  psychological  effect  of  penitence  was 
relied  upon  to  effect  this.  At  a  later  day,  in  consequence  of 
moral  laxity,  alternates  and  substitutes  were  found  of  a 
more  tangible  kind,  and  the  almost  nominal  fine  was  retained 
only  to  mark  the  relative  gravity  of  the  action.  It  was  re- 
placed by  prayers,  pilgrimages  to  the  Holy  Land,  and  alms- 
giving. Still  later,  indulgences  were  introduced  in  the  form 
of  symbolic  recognition  of  what  was  originally  an  objective 
penalty. 

Let  us  take  an  example,  that  of  infanticide,  that  will  well 
illustrate  the  subsidiary  status  of  the  objective  aspect,  and 
the  dominant  influences  of  personal  subjective  considera- 
tions. It  is  generally  acknowledged  that  it  was  an  advance 
in  the  philosophy  of  the  eighteenth  century  to  admit  strongly 
extenuating  circumstances  for  this  crime  when  the  case  was 
that  of  a  mother  driven  to  the  crime  to  conceal  her  sin.  Such 
a  view  seems  decidedly  modern;  and,  indeed,  the  ancient  law 
under  Christian  inspiration  regarded  only  the  protection  of 
the  child.  For  this  it  was  necessary  to  defend  its  weakness, 
as  every  human  being  had  to  be  defended,  because  in  the 


§  67]  RESPONSIBILITY  201 

eyes  of  God  the  child  was  a  soul  with  a  destiny  on  earth;  and 
thus  the  conception  of  murder  as  imperilling  a  soul's  salva- 
tion was  introduced.  This  likewise  impresses  us  as  a  mod- 
ern tendency.  However  we  find  a  similar  provision  in  the 
fourth  century  in  the  Council  of  Ancyrus  (314),  from  which 
arose  the  penitentials  as  they  survive.1  Doubtless  at  the  be- 
ginning great  severity  of  punishment  prevailed.  Infanticide 
was  looked  upon  as  homicide  by  reason  of  a  reaction  against 
the  established  pagan  custom.2  But  at  the  Council  of  An- 
cyrus the  question  of  the  desire  of  the  mother  of  an  illegiti- 
mate child  to  conceal  her  sin  was  considered,  and  in  regard 
to  her  alone  (and  here  is  the  modern  point  of  view),  instead 
of  a  life-long  penance,  as  would  be  imposed  for  homicide, 
the  punishment  was  reduced  to  a  period  of  ten  years,  — 
owing  to  humane  considerations,  as  the  texts  put  it.  From 
then  on  all  the  penitentials  reassert  this  provision.  They 
even  disclose  a  deeper  and  more  humane  insight;  they  speak 
of  mothers  who  allowed  themselves  to  be  led  into  the  sin  of 
the  flesh,  as  it  was  called,  and  disposed  of  the  child.  Such 
murder  is  considered  only  as  the  consequence  of  the  first  sin 
and  becomes  one  with  it.  It  entails  no  special  and  distinc- 
tive penance.  The  case  is  judged  as  a  whole,  as  the  case  of 
an  erring  woman  in  permitting  herself  to  be  seduced.  The 
rest  is  looked  upon  as  the  inevitable  consequence  of  the  se- 
duction. The  punishment  is  mitigated  by  considerations  of 
humanity,  say  the  texts;3  and  no  more  humane,  more  indi- 
vidual, or  more  subjective  point  of  view  could  be  conceived. 
It  is  not  the  crime  but  the  criminal  alone  that  is  to  be  regarded. 
It  becomes  a  subjective  individualization  under  cover  of  a 

1  See  Schmitz,  cited  above,  pp.  259,  356,  412,  etc.,  and  Hefele,  "Concilien- 
Geschichte,"  I,  chap,  i,  240. 

2  On  this  point  see  a  good  thesis  by  M.  R.  Bouton,  "1'Infanticide,"  Paris, 
1897,  p.  33,  seq. 

8  See  Schmitz,  cited  above,  pp.  624,  629. 


202         INDIVIDUALIZATION  OF  PUNISHMENT       [§  67 

wholly  objective  legal  sentence;  and  this  is  what  we  now 
demand.  This  subjective  individualization  derived  from 
this  very  conception  of  responsibility  and  freedom  is  the 
same  formula  which  we  of  to-day  have  reached. 

This  formula  applies  to  that  condition  of  virtual  and 
general  freedom  that  inspires,  though  it  does  not  create, 
each  particular  action.  When  only  the  freedom  of  the  action 
was  considered,  it  followed  that  the  penalty  was  attached  to 
that  very  act.  The-  punishment  was  determined  by  the  ex- 
clusive regard  of  the  act  committed  and  was  directed  to  the 
past.  But  when  one  no  longer  considered  the  act  committed 
and  realized  that  freedom  goes  back  to  the  deeper  strata  of 
the  psychic  personality,  while  yet  unable  to  demonstrate  its 
definite  intervention  for  each  act  in  particular,  the  moral 
and  personal  status  of  the  act  was  decidedly  lessened,  and 
consideration  was  turned  to  the  restoration  and  reinstate- 
ment of  morality.  Freedom  was  looked  upon  with  reference 
not  to  the  past  but  to  the  future.  One  could  not  prove 
what  it  was  that  directly  inspired  the  crime;  but  one  knew 
what  alone  could  arouse  a  struggle  against  the  criminality 
resident  in  the  soul.  Since  punishment  is  again  directed 
towards  the  restoration  of  freedom,  it  is  this  very  freedom, 
the  seed  of  the  moral  future  of  the  condemned,  that  should 
be  considered,  far  more  than  the  freedom  of  action  which 
had  turned  the  wrongdoer  towards  evil  ways.  There  is 
something  definite  in  the  former  which  can  be  reckoned 
upon  as  the  lever  for  his  regeneration;  in  the  latter  there  is 
nothing  tangible.  It  is  a  matter  of  belief  which  cannot  be 
defined.  In  a  theory  of  this  kind,  punishment  considers 
only  the  condition  of  responsibility  which  alone  the  Gospels 
recognize,  and  not  the  state  of  responsibility  which  is  a  con- 
struction of  abstract  reason  and  does  not  reflect  the  facts  as 
they  are.  If  punishment  is  directed  to  the  production  of  a 


§  68]  RESPONSIBILITY  203 

condition  of  responsibility  it  will  individualize  according 
thereto;  and  it  is  in  this  manner  that  the  conception  of  re- 
sponsibility in  the  Gospels,  far  from  being  opposed  to  the 
conception  of  individualization,  prescribes  the  practice  and 
discipline  thereof  as  the  necessary  adjustments  to  practical 
conditions.  These  form  the  foundation  of  its  position,  quite 
apart  from  all  purely  rational  and  dogmatic  abstraction.  The 
practice  of  penitence  and  punishment  in  the  Church  never 
looked  to  any  other  purpose.  The  conception  of  "casti- 
gatio"  was  allied  to  that  of  "disciplina"  and  "remedium."  r 
It  may  be  said  in  all  sincerity,  and  with  reference  to  the  spirit 
of  the  ecclesiastical  law,  if  not  to  the  practice,2  that,  from  the 
penitentials  to  the  foundation  of  St.  Michael  at  Rome  by 
Pope  Clement  XI,  "Parum  est  coercere  improbos  puma, 
nisi  probos  efficias  disciplina."  3 

§  68.   Individualization  in  French  Codes ;  Political  Crimes 

If  this  combination  of  terms  seems  strange,  and  if  dog- 
matic minds,  following  a  purely  deductive  reasoning,  still 
refuse  to  reconcile  these  two  conceptions  of  responsibility 

1  On   the  "  Psense  medicinales  "  of  the  ecclesiastical  law  see  Vargha,  "  Ab- 
schaffung  der  Strafknechtschaf t "  (Graz,  1897),  II,  p.  151  and  pp.  217,  218. 

2  It  is  indeed  necessary  to  make  this  reservation  as  between  practice 
and  theory,  and  not  to  confuse  the  principle  by  which  the  system  was  in- 
spired and  the  compromises  determined  by  circumstance,  by  reason  of  the 
social  requirements  that  in  the  end  ever  determine  measures.    This  is  observ- 
able from  the  beginning  of  ecclesiastical  law,  which  indeed  found  its  positive 
inspiration  in  Roman  law,  in  a  legislation  strictly  shaped  by  the  prevalent 
social  conditions.    These   distinctions   will   aid   the   understanding   of  the 
ideas  which  at  first  seem  somewhat  paradoxical,  and  by  which  Uinschius  in 
his  "Kirchenrecht,"  Vol.  V,  §  265,  p.  123,  seq.,  attempts  to  challenge  the 
traditional  conception  held  in  regard  to  the  penitential  discipline  of  the  ec- 
clesiastical law.     On  this  point  see  Gunther,  "Geschichte  des  Strafrechts" 
in  Liszt's  Review,  Zeit.  f.  d.  g.  Str.  W.,  Vol.  XV,  1895,  p.  166.    His  pres- 
entatiori  is  the  result  of  a  too  one-sided  and  inaccurate  consideration  that 
does  not  take  sufficient  account  of  all  phases  of  the  problem. 

1  Motu  proprio  of  Pope  Clement  XI  of  November  14,  1703. 


204         INDIVIDUALIZATION  OF  PUNISHMENT       [§  68 

and  individualization,  it  will  not  be  profitless  to  show  that 
this  paradox  characterizes  the  present  French  school.  Is  it 
proper  to  speak  of  the  French  as  the  classical  school,  or  shall 
it  be  called  the  corrective  (penitentiaire)  or  by  yet  another 
name?  This  is  not  easy  to  determine.  It  is  clear,  however, 
that  it  is  a  school  that  accepts  truth  wherever  it  finds  it, 
without  too  close  allegiance  to  systems,  —  a  school  of  prac- 
tical methods  and  happy  solutions,  one  of  good  sense  and 
fine  Gallic  insight.  It  has  given  rise  to  the  three  following 
measures:  to  the  provision  of  special  punishments  for  politi- 
cal crimes;  to  conditional  sentences  as  embodied  in  the  law 
of  parole;  and  to  the  banishment  (relegation)  of  habitual 
offenders,  as  prescribed  by  the  law  of  1885.  A  school  that 
may  be  credited  with  these  three  results  stands  for  distinc- 
tively subjective  individualization. 

Let  us  examine  first  the  current  distinction  in  the  scale 
of  criminal  punishments,  between  political  punishments  and 
those  of  common  law.  It  appears  at  first  view  to  be  a  re- 
versal of  all  traditional  principles.  For  general  welfare, 
political  crime  (formerly  a  crime  against  the  state  or  lese- 
majeste)  was  the  most  serious  of  all,  as  it  affected  the  safety 
of  the  State,  which  under  every  system  was  one  with  the 
government.  Such  crime  was  pitilessly  and  severely  pun- 
ished without  regard  for  the  individual.  The  objective  as- 
pect of  the  crime  was  commanding  and  dominant.  Indeed 
it  may  be  urged  that  the  more  engaging,  genial,  and  respect- 
able the  individual,  the  more  dangerous  he  was  as  a  political 
criminal,  —  the  more  his  influence  was  to  be  feared,  the  more 
the  example  set  by  his  rebellion  was  of  grave  import,  the 
more  dangerous  became  his  crime  hi  its  outer  aspect;  conse- 
quently the  more  severely  was  he  to  be  punished.  In  classic 
antiquity,  as  in  ancient  law,  from  early  mediaeval  times  up 
to  the  darkest  years  of  the  French  Revolution,  political 


§  68]  RESPONSIBILITY  205 

crimes  were  invariably  accorded  the  most  severe  punish- 
ments, and  they  were  the  more  ruthlessly  executed  when  the 
victims  commanded  interest  and  sympathy. 

But  a  new  conception  emerged  from  the  carnage  of  our 
civil  wars.  It  was  born  of  the  horror  of  bloodshed  and  wel- 
comed as  a  breath  of  peace,  that  might  make  one  forget  its 
origin.  While  under  this  view  a  political  crime,  on  its  ob- 
jective side,  remains  the  most  serious  of  all  offenses,  sub- 
jectively it  bears  no  relation  to  common-law  offenses.  The 
political  offender  is  not  a  common  criminal;  he  is  not  neces- 
sarily an  evil-minded  man,  not  an  enemy  of  society,  or  one 
who  cannot  be  assimilated  as  a  social  unit.  He  may  be  a 
political  opponent,  but  he  is  not  antagonistic  to  the  social 
idea.  The  anarchist  is  anti-social;  but  the  anarchist  is  not  a 
political  criminal.  There  must  be  protection  against  the  dan- 
ger which  the  political  criminal  offers  to  the  State,  and  it  is 
the  State's  duty  to  protect  itself  against  him.  But  there  is 
no  occasion  to  reform  him  by  punishment  nor  to  influence 
him  by  the  social  disapproval  of  which  punishment  is  the 
expression;  and  still  less  to  attempt  an  educational  punish- 
ment. He  is  not  a  pervert.  Punishment  will  have  no  hold 
upon  him.  It  may  arouse  hesitation  and  fear  by  the  threat 
of  the  deprivation  of  his  liberty,  but  to  attempt  a  reform 
of  his  conscience  and  opinions  would  be  an  absurd  pretense. 
What  he  needs  is  a  political,  and  not  a  moral  conversion; 
and  prison  discipline  will  hardly  change  the  politics  of  any 
but  those  whose  convictions  are  readily  shifted.  The  influ- 
ence of  fear  does  not  effect  a  moral  reform.  Hence  political 
punishments  should  not  be  in  the  same  class  with  those  of 
common  law. 

As  soon  as  this  idea  was  accepted  it  brought  about  a  revo- 
lution in  our  laws.  The  subjective  view  and  the  conception 
of  individualization  were  substituted  for  the  objective  view 


206         INDIVroUALIZATION  OF  PUNISHMENT       [§  69 

of  the  material  gravity  of  the  crime.  The  modern  view  that 
punishments  should  be  differently  organized  for  different 
classes  of  criminals  prevailed;  and  in  the  sequel  will  appear 
the  further  consistent  results  of  this  double  scale  of  criminal 
punishments.  At  all  events  the  conception  that  directly 
resulted  therefrom  was  that,  side  by  side  with  the  punish- 
ments that  apply  to  the  evil-doer  and  make  him  the  mark  of 
public  disapproval,  there  must  be  punishments  for  honest 
men,  who,  by  the  manner  of  their  behavior  have  become  a 
public  menace.  Such  punishments  should  not  be  degrading 
or  educational  or  corrective.  They  should  be  purely  and 
simply  deterrent,  or  punishments  in  behalf  of  public  safety 
without  other  pretense. 

§  69.  Individualization  in  Deportation 

That  this  was  the  precise  position  of  the  French  penal 
code  is  evidenced  by  the  fact  that  at  the  extremities  of  the 
scale  we  find  two  punishments  of  the  same  character,  in- 
volving imprisonment,  that  do  not  entail  hard  labor  — 
which  is  regarded  as  the  sign  of  penal  servitude  —  and 
which  are  free  from  "legal"  infamy.  The  one  is  detention, 
the  most  serious  political  punishment,  since  it  may  last  in 
theory  from  five  to  ten  years;  and  at  the  other  extreme, 
city-jail  imprisonment  for  infraction  of  an  ordinance,  a 
punishment  that  carries  with  it  no  infamy  and  has  no 
other  status  than  a  penalty  legally  provided.  It  is  simply 
a  means  of  forcing  citizens  to  respect  the  law,  and  is  a  very 
light  punishment,  with  a  maximum  of  five  days'  imprison- 
ment. Viewed  formally  as  provisions  of  the  same  system, 
these  punishments  are  of  the  same  nature  and  are  purely 
technical  penalties,  not  measures  of  social  disapproval. 
They  involve  the  payment  of  one's  obligations  in  taking 
one's  chances.  As  a  punishment  they  have  no  other  bearing. 


§  69]  RESPONSIBILITY  207 

This  group  of  punishments  is  withdrawn  from  the  field 
of  common-law  punishments.  It  is  not  until  the  year  1885 
that  we  find  a  special  punishment  that  likewise  is  withdrawn 
from  the  list  of  ordinary  punishments.  I  refer  to  the  de- 
portation of  incorrigibles,  which  measure  is  a  direct  result 
of  the  Italian  school.  Among  the  prized  ideas  of  this  school 
is  that  of  the  existence  among  criminals  (and  including  the 
majority  thereof)  of  a  class  not  amenable  to  punishment. 
They  form  the  class  that  cannot  be  assimilated:  whether 
criminals  by  birth  or  by  later  development  matters  little. 
Crime  is  their  profession.  There  is  no  purpose  in  punishing 
them,  for  punishment  has  no  effect  upon  them.  They  must 
be  segregated,  and  society  must  be  relieved  of  their  pres- 
ence; especially  must  the  great  cities  be  cleansed  of  this 
social  refuse.  To  receive  these  social  outcasts,  let  there 
be  set  apart  a  colony  to  which  they  be  sent.  Despite  all 
they  may  develop  into  good  colonists;  and  that  would  result 
to  the  benefit  of  society.  The  source  of  danger  would  there- 
by be  removed,  and  a  possibility  exists  that  in  the  end  they 
would  confer  a  benefit  upon  the  tropical  colonies  to  which 
they  are  sent.  Such  punishment  constitutes  a  measure  of 
criminal  economics  in  the  true  sense  of  the  word,  but  ob- 
viously not  a  measure  of  penal  law,  merely  a  measure  of 
social  economy. 

It  is  true  that  the  authors  of  the  law  of  1885  were  re- 
strained by  certain  scruples  which  made  them  commit  some 
serious  errors.  They  started  from  the  idea  that  deportation 
was  not  a  punishment,  that  it  was  liberty  outside  of  France, 
which  made  of  it  merely  a  supervised  and  regulated  exile. 
Since  the  law  had  been  broken,  it  followed  that  a  punish- 
ment should  be  imposed  and  the  debt  absolved.  Thus  the 
man  liable  to  deportation  had  to  pay  his  penalty  in  France 
before  being  eligible  to  deportation  to  the  colonies.  This 


208         INDIVIDUALIZATION  OF  PUNISHMENT       [§  69 

was  a  two-fold  mistake.  Deportation  is  doubtless  not  a 
punishment  in  the  classic  sense  of  the  word.  It  is,  however, 
still  a  deterrent  measure  that  should  be  administered  in 
progressive  stages.  It  is  a  punishment  for  incorrigibility, 
or,  if  it  be  preferred,  of  a  series  of  infractions  that  prove 
incorrigibility.  The  view  does  not  tally  with  a  notion  of 
a  series  of  debts  to  be  paid,  for  when  an  account  is  once 
settled,  it  wipes  out  the  whole.  On  the  other  hand,  it  falls 
in  well  with  the  idea  of  a  criminality  to  be  overcome  and 
minimized.  It  is  clearly  and  primarily  a  preventive  measure. 
But  this  preventive  measure  remains  the  penalty  for  a 
series  of  criminal  actions  that  furnish  the  proof,  in  those 
thus  guilty,  of  a  condition  of  chronic  insubordination.  It 
is  this  condition  of  insubordination  that  likewise  demands 
its  special  penalty.  Why  should  the  deported,  inasmuch 
as  they  undergo  an  actual  punitive  treatment,  be  subjected 
in  France  to  a  preliminary  punishment?  Why  particularly 
a  punishment  of  the  older  type,  a  punishment  of  an  edu- 
cational kind,  when  they  are  assumed  to  be  refractory  to 
all  punishment?  They  should  be  put  to  work  in  the  colonies 
as  quickly  as  possible,  instead  of  still  further  having  then* 
powers  drained  by  the  routine  of  the  prison  and  solitary 
confinement.1  This  involves  a  two-fold  mistake  and  a 

1  See  the  excellent  study  by  M.  LeveUU  in  "Les  institutions  penitentiaires 
de  la  France  in  1895"  (Paris,  at  the  meeting  of  the  Societe  generate  des 
Prisons,  1895),  p.  284,  seq.  There  are  many  defects  involved  in  this  law  of 
1885  of  which  this  is  not  the  place  to  speak.  It  is  sufficient  to  indicate  the 
most  serious,  the  idea  of  a  purely  legal  criterion  of  incorrigibility,  depending 
in  an  arbitrary  fashion  upon  the  number  and  kind  of  offenses  without  re- 
gard to  the  opinion  of  the  judge.  The  discussions  at  the  Congress  of  St.' 
Petersburg  show  how  difficult  is  this  criterion  of  incorrigibility.  The  French 
system  constantly  tends  to  leave  everything  to  the  law  and  nothing  to  the 
judges.  This  is  a  spirit  of  unfortunate  distrust.  On  the  other  hand  the  law 
of  conditional  discharge  makes  it  possible  to  apply  it  to  punishments  imposed 
upon  those  eligible  to  deportation,  in  so  far  as  that,  if  one  thus  discharged 
conducts  himself  well  for  ten  years,  he  is  not  liable  to  deportation.  But  as  it 


§  70]  RESPONSIBILITY  209 

double  misfortune.  It  arises  from  the  belief  that  deporta- 
tion could  be  made  a  sort  of  exile  with  theoretical  freedom, 
while  in  reality  it  is  a  punishment,  though  of  a  different 
kind  and  imposed  as  a  measure  of  social  security  rather 
than  of  personal  reform.  But  it  is  a  punishment  by  virtue 
of  its  legal  basis  (which  goes  back  to  the  conception  of  re- 
sponsibility) as  well  as  by  the  treatment  that  it  entails. 
The  position  maintains  that  the  incorrigible  man,  in  so  far 
as  he  is  legally  responsible  for  his  incorrigibility,  shall  sub- 
mit to  the  punishment  which  his  condition  demands. 

The  penal  code  instituted  deterrent  punishments  for 
offenders  who  were  not  criminals  by  nature.  The  law  of 
1885  in  turn  established  a  penalty  of  elimination  for 
incorrigibles.  There  is  thus  clearly  indicated  in  French 
legislation  a  three-fold  classification  of  criminals  with  cor- 
responding punishments:  delinquents,  without  criminal  per- 
version; incorrigibles;  and,  between  the  two,  the  large  group 
of  offenders  exhibiting  a  perversion  of  greater  or  less  degree, 
but  presumably  susceptible  to  reform.  This  is  the  three- 
fold classification  in  French  law  at  present. 

§  70.   Individualization  in  Short-term  and  Long-term 
Sentences 

But  the  French  school  has  gone  beyond  this.  Within 
this  intermediate  group  with  which  common  law  deals  — 
that  of  offenders  who  psychologically  are  criminals  but  are 
supposed  to  be  susceptible  to  reform  and  punishment  — 
there  are  distinctions  to  be  made.  There  are  the  first 
offenders  and  the  rest;  next,  within  both  groups,  and  par- 
is  the  administration,  and  not  the  judge,  that  takes  the  initiative  in  condi- 
tional discharge,  it  results  that  in  fact  the  determination  and  sentence  are  put 
in  the  hands  of  the  administration,  and  not  of  the  judiciary  control.  (Law 
of  April  14,  1885,  art.  12.)  Moreover  this  is  quite  a  fortunate  solution,  since 
it  is  by  the  testing  of  his  freedom  under  surveillance  of  the  administration, 
that  the  evidence  of  incorrigibility  of  the  criminal  may  be  afforded. 


210         INDIVTOUALIZATION  OF  PUNISHMENT       [§  70 

ticularly  within  the  former,  there  are  the  chance  victims 
of  a  vicious,  passionate,  or  dishonest  impulse;  and  again 
those  by  nature  vicious,  who  though  already  given  over  to 
the  habit  of  delinquency,  are  not  hopelessly  lost  but  have 
still  a  chance  of  regeneration.  But  the  indifference  of  the 
law  draws  no  distinction  between  them. 

However,  before  reaching  the  law  of  1891,  prescribing 
conditional  sentences,  we  come  upon  reforms  due  mainly 
to  the  administration,  and  hi  the  direction  of  individual- 
ization.  It  is  well  to  recall  that  many  of  these  reforms  fol- 
lowing upon  the  legal  provisions,  had  as  their  direct  cause 
the  requirements  of  the  budget.  Their  effect  has  been  not 
the  less  beneficial.  So,  accordingly,  the  penal  code  ad- 
mitted punishments  of  different  nature,  corresponding  to 
the  several  types  of  violation  committed.  This  was  pe- 
culiarly reasonable  with  reference  to  detention  in  general 
of  which  there  were  four  varieties.  In  particular,  im- 
prisonment was  to  involve  a  different  discipline  according 
to  the  crimes  or  offenses  concerned.  Those  sentenced  for 
true  crimes  and  those  sentenced  for  merely  legal  infractions 
were  to  be  placed  in  different  institutions.  The  severity 
of  the  treatment  was  to  be  proportioned  according  to  the 
severity  of  the  offense.  The  resources  of  the  budget  did  not 
permit  the  enforcement  of  such  distinctions  and  the  pro- 
vision of  separate  institutions.  The  differentiation  was 
then  made  upon  another  basis;  it  was  no  longer  in  terms 
of  the  nature  of  the  imprisonment  but  of  its  duration,  re- 
sulting in  short-term  and  long-term  sentences.  The  former 
were  served  in  jails  and  the  latter  in  penitentiaries,  without 
considering  whether  hard  labor  or  corrective  discipline  was 
involved.  This  was  in  direct  violation  of  the  law,  but  it 
produced  excellent  results,  for  the  short-term  sentences 
were  almost  always  applied  to  first  offenders.  It  would  be 


§  70]  RESPONSIBILITY  211 

rare  for  an  habitual  offender  to  be  sentenced  to  a  few  months 
in  jail.  The  incidental  offenders  were  kept  apart,  and  the 
professional  criminals  were  sent  to  the  penitentiaries.  This 
amounted  to  dealing  with  those  guilty  of  repeated  misde- 
meanors in  much  the  same  way  as  with  first  offenders  in 
crime;  and  this  is  quite  right.  Those  committed  for  a  second 
or  third  theft,  although  keeping  to  petty  larceny,  are  differ- 
ently tainted,  in  most  cases,  from  those  engaged  in  then* 
first  crime.  It  is  not  the  gravity  of  the  offense  by  which 
the  criminality  of  the  individual  should  be  judged;  far  from 
being  directly  related,  the  two  are  most  commonly  in  in- 
verse ratio. 

This  distinction  was  in  the  end  legally  recognized  in  the 
law  of  1875  on  solitary  confinement,  .applicable  only  to 
short-term  sentences.  Moreover,  it  was  recognized,  quite 
apart  from  the  question  of  subjective  criminality,  that  the 
treatment  for  short-term  sentences,  for  the  very  reason 
that  their  duration  did  not  permit  of  the  supervision  and 
the  stages  of  progressive  education  of  the  long-term  sen- 
tences, should  be  assigned  to  a  distinct  administration;  and 
this,  not  only  with  reference  to  labor,  but  also  where  solitary 
confinement  is  not  in  use.  It  was  owing  to  these  consider- 
ations that  the  important  decree  of  November  11,  1885,  was 
issued,  concerning  the  organization  of  short-term  imprison- 
ment where  promiscuity  was  hi  vogue.  As  a  consequence, 
since  1875,  all  those  sentenced  to  less  than  a  year  of  im- 
prisonment must  serve  their  sentences  in  solitary  confine- 
ment, and  since,  in  view  of  this  material  provision,  the  jails 
had  to  be  rebuilt  and  refurnished,  they  were  subjected  to 
a  more  or  less  communal  routine,  very  different  from  that 
of  the  penitentiaries.  On  the  other  hand,  all  those  sentenced 
for  long  terms,  that  is  for  more  than  a  year,  whether  they 
had  committed  a  crime  or  a  statutory  offense,  whether  in- 


212         INDIVIDUALIZATION  OF  PUNISHMENT       [§  70 

volving  hard  labor  or  corrective  discipline,  were  sent  to  the 
penitentiaries.  Since  the  law  of  1875  the  like  status  of 
corrective  discipline  for  long-term  sentences  and  hard  labor 
has  become  a  legal  fact,  sanctioned  by  law. 

The  arrangement  meets  with  approval.  It  is  better  than 
that  of  the  penal  code  founded  upon  the  distinction  between 
crimes  and  statutory  offenses.  It  has  as  its  basis  a  principle 
of  individualization,  the  distinction  between  the  incidental 
offender  and  the  offender  by  nature  and  psychological 
condition.  Yet  all  this  was  not  adequate;  and  the  next 
advance  was  towards  the  law  of  1891,  the  credit  of  which 
belongs  to  M.  Berenger.  It  is  but  fair  that  it  should  be 
known  by  his  name  and  that  posterity  should  thus  render 
a  permanent  tribute  to  this  great  philanthropist,  who, 
despite  prejudice  and  bias,  ever  courageously  directed  his 
efforts  to  the  improvement  of  moral  and  penitentiary  con- 
ditions. The  law  of  parole  should  mark  a  turning-point 
in  the  trend  of  penal  law.  It  is  the  definite  abandonment 
of  the  conceptions  of  absolute  justice  in  favor  of  that  of  a 
criminal  economics  in  the  best  sense  of  the  word.  The  best 
justice  is  that  which  saves  its  victims;  and  that  is  the  very 
purpose  of  conditional  sentences.  Here  we  approach  the 
last  stage  of  individualization;  one  can  hardly  go  further. 
All  we  ask,  indeed,  is  that  punishment  should  be  differen- 
tiated according  to  the  nature  of  the  individual;  we  do  not 
ask  the  suppression  of  punishment.  Punishment  is  indeed 
suppressed  in  its  outward  appearance.  However,  from 
the  point  of  view  of  justice,  an  infraction  has  been  com- 
mitted and  a  punishment  must  be  forthcoming.  The  penalty 
must  be  enforced.  Society  thus  proceeds  like  a  creditor 
who  concedes  to  the  debtor  a  discount  of  his  debt.  Society 
does  this  by  reason  of  the  interest  which  the  individual  pre- 
sents. Moreover  this  favor  should  be  granted  only  to  first 


§  70]  RESPONSIBILITY  213 

offenders,  and  here  the  distinction  between  first  offenders 
and  others  becomes  legally  sanctioned.  The  purpose  is  to 
prevent  confirmed  criminality.  The  Berenger  law  is  such 
a  preventive  measure. 

The  preparatory  steps  to  this  issue  were  taken  long  in 
advance.  In  1875  the  short-term  sentences  were  separately 
considered,  the  idea  being  thus  to  make  the  treatment  of 
short-term  offenders  as  morally  effective  as  possible.  It  was 
thought,  as  every  criminologist  of  to-day  believes,  that  the 
short-term  punishments  form  the  critical  point  of  the  peni- 
tentiary regime.  The  many  objections  made  by  criminolo- 
gists  (Mittelstadt,  Vargha,  etc.) 1  against  punishments  that 
deprive  one  of  freedom  apply  particularly  to  imprisonment 
as  a  punishment  for  first  (or  early)  offenses,  broken  up  into 
fragments  of  quite  insignificant  length.  Punishments  of 
this  type  do  not  last  long  enough  to  reform,  but  they  last 
long  enough  to  contaminate.  Imprisonment,  even  when 
served  in  solitary  confinement  and  free  from  all  promiscuous 
association,  is,  in  its  first  impression,  of  itself  corrupting 
because  it  destroys  the  sentiment  of  self-esteem.2  Thus 
since  1875  it  has  been  recognized  that  there  was  more  to  be 
done  hi  this  field.  In  1885  a  further  step  was  taken  by  the 
general  introduction  of  conditional  discharge.  This  was 

1  Mittelstadt,    "Gegen    die    Freiheitsstrafen"    (second   edition,    Leipzig, 
1879);  and   Vargha,   "Die  Abschaffung  der  Strafknechtschaft"   (2  vols., 
Graz,  1896  and  1897). 

2  All  this  is  well  known  and,  sadly  enough,  too  well  established  to  need 
further  corroboration.    It  is  interesting,  however,  to  note  the  testimony  of 
one  who  is  not  a  criminologist  or  an  expert  but  is  indeed  a  psychologist  with 
large  heart  and  clear  insight,  the  late  Dostoiewsky.     His  adverse  opinion 
of  the  treatment  in  convict  prisons  and,  as  well,  of  solitary  confinement, 
is  familiar.    See  Dostoiewsky,  "Souvenirs  de  la  Maison  des  Morts,"  pp.  17  and 
18.    Likewise  consult  Paul  Hymans,  "La  Lutte  centre  le  crime"  (Brussels, 
1892),  especially  p.  53,  seq.    Moreover  consult  M.  Montgomery,  an  old  pris- 
oner, and  his  opinion  in  regard  to  long  terms  in  the  article  cited  above,  p.  135, 
note  1. 


214         INDIVTOUALIZATION  OF  PUNISHMENT       [§  70 

no  longer  limited  to  minors  sent  to  prison  colonies,  irre- 
spective of  the  nature  of  their  previous  sentence.  The  con- 
ditional discharge  was  not  an  act  of  administrative  clemency 
but  a  recognized  mode  of  serving  a  sentence  at  large  under 
a  kind  of  patronage  or  moral  surveillance.  Why  then  may 
not  this  method  of  serving  a  sentence  in  liberty  begin  with 
the  very  beginning  of  punishment?  In  the  progressive 
system,  conditional  discharge  is  but  the  reward  of  good 
conduct;  it  assumes  that  part  of  the  debt  is  paid  and  part 
of  the  sentence  served.  But  for  those  who  are  in  need  of 
oversight  and  not  of  prison  discipline,  why  should  not  this 
form  of  discharge  under  surveillance  and  moral  protection 
begin  at  the  outset? 1  Vargha  proposes  such  measures  as  a 
general  substitute  for  all  punishments  by  imprisonment 
and  penal  servitude.  In  that  form  the  proposal  is  quite 
Utopian.2  But  as  a  limited  provision  for  certain  special 
offenders,  whom  it  is  desired  not  to  withdraw  from  their 
work  or  their  vocation,  this  serving  of  a  sentence  while  at 
large  would  be  an  excellent  provision.  It  is  probable  that 
in  the  future  this  will  be  the  great  substitute  for  prison 
discipline;  and  especially  so  in  view  of  the  fact  that  such 
conditional  sentence  proves  to  be  more  effective.  It  ad- 
mits of  full  and  entire  liberty,  omitting  all  guardianship 
and  oversight,  and  yet  does  not  assume  that  the  punish- 
ment has  been  satisfied.  The  punishment  is  withheld  or 
suspended,  conditionally  suppressed.  At  all  events  the  ex- 
ample of  conditional  discharges  has  served  as  a  transition 
and  approach  to  the  conception  of  a  purely  conditional 
sentence. 

1  See  Aschrott,  "Strafensystem  und  GefSngniswesen  in  England,"  p.  98, 
aeq.;  and  as  precedents  for  conditional  condemnation,  see  Mumm,  "Die 
Gefangnisstrafe  und  die  bedingte  Verurtheilung,"  p.  25,  seq. 

2  See  the  account  given  by  Oppenheim,  in  Kritiache  Vierteljohresschriftf 
Vol.  XXXIX,  1897,  p.  571. 


§  71]  RESPONSIBILITY  215 

§  71.  The  System  of  Parole :  its  Faulty  Application 

Moreover,  when  the  law  of  1891  was  voted  upon,  there 
was  very  little  discussion  of  principles;  but,  what  was  more 
to  the  point,  the  facts  were  emphasized.  Statistics  proved 
that  short-term  punishments,  and  even  the  simple  contact 
with  prison-life,  whether  of  solitary  confinement  or  not, 
was  enough  to  make  a  confirmed  criminal  of  any  one  ex- 
posed to  its  influences.  Of  what  benefit  is  it  for  society  to 
incarcerate  a  first  offender  when  there  is  reason  to  believe 
that  he  is  simply  a  misguided  person,  not  likely  to  repeat 
his  offense?  His  only  means  of  salvation  may  be  that  of 
escaping  punishment;  and  salvation  is  everything.  More- 
over, wherever  disciplinary  authority  exists,  whether  in  the 
family  in  favor  of  the  father,  or  in  government  in  favor  of 
superior  officials,  the  first  law  of  good  discipline  —  if  that  in- 
deed is  the  object  —  is  almost  always,  except  in  absolutely 
serious  cases,  to  pardon  the  first  offense.  Shall  society  alone 
refuse  to  exercise  pardon?  1  It  is  only  in  deference  to  an 
outgrown  abstract  system  of  absolute  equality  that  the  law 
is  law,  and  that  to  suspend  its  application  requires  the 
authority  of  those  who  make  the  laws.  Those  who  have  the 
power  to  make  laws  have  only  to  delegate  to  others  the  power 
to  suspend  or  to  regulate  their  application.  That  is  what 
was  done  hi  1891,  to  the  advantage  of  the  judiciary  author- 
ity. The  judges  were  given  the  means  of  saving  those  who 
appeared  before  them  for  the  first  time.  They  of  necessity 
had  to  probe  the  motives  and  sentiments  of  the  defendants; 
it  was  for  them  to  appraise  and  judge,  and  the  law  prescribed 

1  On  this  point  see  the  precedents  dating  from  mediaeval  times  and  the 
ancient  law  reported  by  Chiaroni,  "La  condanna  condizionale "  (Treviso, 
1897,  p.  21).  See  what  I  have  said  elsewhere  in  regard  to  the  law  of  pardon, 
in  the  volume  of  M.  Octave  Aubry, "  L'indulgence  et  la  loi,"  Paris,  1908,  p.  190, 
seq.,  particularly  pp.  196-197. 


216         INDIVIDUALIZATION  OF  PUNISHMENT       [§  71 

no  further  or  partial  instruction.  The  law  of  1891  did  not 
even  make  a  distinction  in  terms  of  the  gravity  of  the  offense. 
It  considered  all  cases  of  corrective  imprisonment  irrespec- 
tive of  duration,  even  cases  involving  the  maximum  legal 
period  of  five  years,  and  cases  assigned  a  corrective  punish- 
ment by  reason  of  provocation  or  of  mitigating  circum- 
stances in  the  charge. 

The  possibility  of  granting  parole,  even  for  those  sentenced 
to  an  imprisonment  of  five  years,  seemed  objectionable;  and 
it  still  appears  so,  possibly  more  than  ever.  In  the  proposed 
revision  of  the  French  penal  code  it  was  thought  desirable  to 
accede  to  these  protests;  and  the  field  of  application  of  the 
Berenger  law  was  decidedly  reduced.1  This  involves  a  mis- 
understanding of  the  Berenger  law.  It  makes  the  parole  a 
kind  of  grace  or  favor  depending  upon  the  gravity  of  the 
offense,  and  requires  a  consideration  of  the  deed  committed. 
This  totally  changes  the  spirit  of  the  law.  It  was  the  law's 
intention  that  the  judge  should  take  into  consideration  not 
the  objective  gravity  of  the  deed  but  the  chances  of  reform 
of  the  individual;  and  upon  that  the  crime  has  no  bearing. 
Take  the  case  of  a  young  thief  who  has  the  temperament  of 
a  true  malefactor.  He  commits  his  first  theft,  or  rather,  it 
is  the  first  time  that  he  is  caught  in  the  act.  The  offense 
itself  carries  not  more  than  three  months'  imprisonment. 
According  to  the  proposed  amendment  it  would  come  under 
the  conditions  of  the  Berenger  law.  Take  the  case  of  an 
honest  cashier,  faithful  and  steady,  who  is  drawn  into  an  ir- 
regular life.  He  gets  into  debt,  takes  money  from  the  cash- 
box,  sincerely  believing  that  in  a  few  days  he  will  be  able  to 
replace  it.  He  is  discovered  before  he  can  do  so.  It  is  a  seri- 

1  See  the  just  criticism  on  this  subject  in  the  essay  by  M.  Le  Poittevin, 
"Le  projet  de  reforme  du  Code  penal"  (Revue  penitentiaire,  1893,  pp.  174- 
175). 


§  71]  RESPONSIBILITY  217 

ous  offense.  To  make  this  offense  punishable  by  nothing 
less  than  imprisonment  makes  it  impossible  to  grant  the 
parole,  which,  however,  is  granted  to  the  petty  thief  who 
has  no  need  of  it.  To  give  the  latter  his  freedom  is  to  re- 
store him  to  his  environment  and  to  the  temptations  that  it 
entails.  What  he  needs  is  a  corrective  and  educational  dis- 
cipline that  may  lift  his  life  out  of  vagrancy  and  induce 
different  habits.  On  the  other  hand,  because  the  cashier's 
sentence  exceeds  three  months  in  jail,  he  is  refused  the  parole, 
although  he  but  yielded  to  the  temptation  of  a  moment. 
Intrinsically  he  has  not  thereby  become  a  dishonest  man; 
he  is  repentant,  has  given  up  his  evil  ways,  and  gives  assur- 
ance that  he  will  not  return  to  them.  His  condemnation  is 
demanded;  he  must  undergo  his  punishment.  It  is  easy  to 
anticipate  what  the  result  will  be  and  what  will  become  of 
him  on  leaving  the  jail.  His  position  and  his  future  gone, 
his  career  forever  spoilt,  reinstatement  hardly  possible,  he 
has  to  face  poverty  and  shame.  Almost  inevitably  he  drifts 
to  dubious  callings  and  a  career  of  fraud.  He  does  not  join 
a  band  of  thieves,  for  such  is  not  his  temperament,  but  he 
can  find  occupation  only  in  such  suspicious  callings,  followed 
by  shady  characters,  as  are  open  to  persons  who  have  lost 
honor  and  self-esteem.  The  chances  are  nine  in  ten  that  he 
will  become  one  of  their  number.  Parole  permits  the  one 
man  to  return  quite  too  readily  to  habits  of  idleness  and 
vice,  and  the  deprivation  of  parole  makes  the  other  more  or 
less  a  knave  for  life.  Can  it  be  said  that  a  provision  able 
to  bring  about  such  results  is  a  fortunate  change? 

A  proper  estimate  of  the  Berenger  law  requires  that  it  be 
considered  in  the  spirit  in  which  the  eminent  man  to  whose 
fine  initiative  it  was  due  intended  and  framed  it,  as  it  was 
enacted  in  1891,  and  not  in  the  form  given  it  by  those  who 
were  imbued  solely  with  the  predominant  and  almost  ex- 


218         INDIVIDUALIZATION  OF  PUNISHMENT       [§  71 

elusive  consideration  of  the  objective  gravity  of  the  crime. 
Of  all  forms  of  individualization  this  is,  if  possibly  not  the 
most  thorough,  at  least  the  most  adaptable  and  elastic;  and 
that  for  two  reasons:  the  first,  because  no  prescription  is 
imposed  upon  the  judge  and  he  need  be  guided  solely  by  his 
personal  impression;  and  the  second,  because  under  the  pre- 
text of  individualization  there  is  involved,  not  a  change  of 
punishment  but  an  actual  suspension  of  the  punishment 
itself.1  Without  going  to  the  extent  of  pardoning  altogether, 
one  can  go  no  further. 

In  the  end  what  is  needed  is  a  legislation  such  as  ours, 
which,  disregarding  the  outer  form  of  the  offense,  admits 
the  legal  distinction  between  short-term  and  long-term 
sentences,  between  political  and  common-law  punishments; 
which  accepts  elimination  —  or  deportation  —  for  those  pre- 
sumably incorrigible,  and  on  the  other  hand  a  purely 
conditional  sentence  for  first  offenders  whose  reform  seems 
certain,  and  who,  despite  this  first  offense,  may  still  be 
classed  among  honest  folk.  A  legislation  of  this  type  is  legis- 
lation upon  a  purely  subjective  basis,  favoring  the  individual- 
ization of  punishment,  applying  it,  and  practicing  it.  Such 
progress  must  be  a  matter  of  gradual  advance  and  involves 
reforms  to  be  added  from  time  to  time  to  the  body  of  our 
old  penal  code.  The  present  problem  is  to  bring  together 
these  several  innovations  and  to  develop  their  logical  conse- 
quences. The  reforms  of  1875,  of  1885,  and  of  1891  must 
be  taken  as  the  basis  of  this  new  construction.  Instead  of 

1  It  is  as  a  measure  of  individualization  of  punishment  that  conditional 
sentences  should  be  regarded;  and  as  such  it  is  different  from  all  other  regu- 
lations with  which  it  may  be  compared.  See  for  the  movement  thus  brought 
about  in  Germany,  and  the  criticisms  that  have  been  advanced  on  this  point, 
the  two  pamphlets  of  Bachem,  "Die  bedingte  Verurtheilung"  (second  edi- 
tion, 1895),  and  "  Bedingte  Verurtheilung  oder  bedingte  Begnadigung?"  1896. 
See  also  Liszt  and  the  works  to  which  he  refers  (edition  1895,  §  15,  text  and 
note  3.  p.  76). 


§  71]  RESPONSIBILITY  219 

advancing  the  cause  the  proposed  amendment  retards  it; 
it  is  a  step  backward.  It  is  at  best  a  sort  of  revival  of  the 
old  penal  code  of  1810.  The  latter  is  indeed  better  in  its 
somewhat  severe  rigidity  than  when  arrayed  in  the  legal  de- 
tails which  its  remodeled  form  is  made  to  wear.  What  is 
wanted  is  a  new  construction  built  up  on  the  sound  premises 
of  the  penal  code  of  1810  and  taking  as  a  guide  the  laws  of 
1875,  1885,  and  1891.  These  have  only  to  be  developed  in 
regard  to  certain  simple  issues  in  order  to  bring  about  an  ex- 
cellent legislation  which  shall  apply  individualization  upon 
the  basis  of  responsibility. 

To  trace  the  larger  outlines  of  such  an  attempt  is  our 
present  task.  It  does  not  involve  the  consideration  of  further 
details.  The  principles  are  at  hand;  there  must  be  supplied 
an  outlook  that  will  show  the  special  measures  by  which  the 
newer  conceptions  may  and  should  find  their  application.1 

1  Since  the  law  of  March  26,  1891,  the  institution  of  parole  has  been 
adopted  in  the  Canton  of  Geneva  (law  of  October  29,  1892),  in  Portugal 
(law  of  July  6,  1893),  in  the  Grand  Duchy  of  Luxemburg  (law  of  May  10, 
1892),  in  Italy  (the  Ronchetti  law  of  June  26,  1904).  In  Germany,  as  al- 
ready noted,  a  movement  in  favor  of  the  parole  has  been  on  foot  for  several 
years.  If  it  has  not,  as  yet,  been  admitted  for  all  first  offenders,  there 
has  been,  on  the  other  hand,  an  advance  beyond  parole  in  that  a  system  of 
pardon,  with  a  verbal  reprimand,  has  replaced  the  sentence  of  first  offenders 
under  eighteen  years  of  age;  this  was  done  by  authority  of  the  law  of  July  2, 
1900.  On  this  law  see  Liszt,  id.,  1905,  §  15,  note  4,  p.  75.  In  Russia  condi- 
tional sentences  have  been  made  the  subject  of  a  recently  proposed  law. 
(See  the  report  of  C.  Sacharqff,  of  Moscow,  on  the  reform  of  justice  in  Russia: 
Bulletin  de  I' Union  intern,  de  droit  pSnal.  1907,  pp.  275,  297,  and  371). 

There  should  be  mentioned  the  proposed  law  of  M.  Emile  Morlot,  for 
France,  having  as  its  object  the  introduction  in  our  legislation  of  the  system 
of  pardon,  pure  and  simple,  without  reprimand.  (See  the  text  of  the  pro- 
posed law,  with  the  report  that  preceded  it,  in  the  Journal  officiel,  attached 
to  the  protocol  of  the  session  of  December  19,  1907.) 


CHAPTER  VIII 

LEGAL  INDIVIDUALIZATION 

§  72.  Legal  Individualization  necessarily  General. 

§  73.  Examples  of  False  Individualization. 

§  74.  Approach  to  Judicial  Individualization  and  the  Cases  concerned. 

§  75.  The  Proper  Education  of  Magistrates. 

§  76.  The  Place  of  the  Jury  in  Individualization. 

§  72.  Legal  Individualization  necessarily  General 

IN  a  general  survey  of  the  subject  three  distinct  types  of 
individualization  appear:  the  first,  or  legal  Individualization, 
is  determined  by  the  law  in  advance  as  a  penalty;  the 
second,  or  judicial  individualization,  which  is  the  best,  is 
determined  by  the  judge;  and  the  third,  or  administrative 
individualization,  is  determined  in  the  course  of  punishment. 

In  reality  there  is  no  individualization  by  law.  The  law 
can  distinguish  classes  of  cases;  it  cannot  recognize  individ- 
uals. All  that  individualization  by  law  can  consider  are  the 
reasons  for  the  extenuation  or  aggravation  of  punishment, 
based  upon  the  relative  gravity  of  the  crime,  and,  in  so  far, 
upon  the  degree  of  responsibility.  Such  individualization  is 
based  upon  responsibility  and  returns  to  the  position  of  the 
neo-classic  school.  It  is  a  false  individualization.  It  is  easy 
to  understand  that  the  law  should  admit  reasons  for  the  ex- 
tenuation of  punishment  when  the  offense  in  its  outer  aspect  is 
not  serious.  This  amounts  only  to  a  reduction  of  the  penalty 
and  is  fair  enough.  In  many  instances  it  may  properly 
apply;  for  example,  in  the  well-known  form  of  what  is  some- 
times still  called  contingent  liability  wherein  the  nature  of 

220 


§  72]  LEGAL  INDIVroUALIZATION  221 

the  offense  is  altered  undesignedly.1  Let  us  suppose  an  as- 
sault with  the  intent  to  incapacitate.  It  may  be  urged  that 
the  possibility  of  a  serious  consequence  of  the  assault  may 
have  been  foreseen.  Let  us  assume  that  such  occurs  and 
results  in  a  murder.  Inasmuch  as  the  affair  was  in  fact  pre- 
meditated, one  may  regard  it  as  an  intentional  murder. 
However,  the  crime  committed  is  not  the  crime  that  was 
originally  planned.  There  thus  results  a  change  of  the  ob- 
jective status  of  the  crime;  and  this  is  recognized  in  the  legal 
mitigation  of  the  punishment.  The  same  is  true  of  an  act 
of  negligence  in  which  there  was  a  similar  possible  anticipa- 
tion of  a  criminal  issue.  Such  is  the  case  of  a  hunter  who, 
in  firing  upon  something  passing  within  range  of  his  gun, 
may  reflect  that  he  is  taking  the  chances  of  killing  some  one. 
The  quarry  moves,  the  hunter  fires.  He  runs  the  risk  of  a 
murder,  and  a  murder  ensues.  The  act  may  be  regarded 
not  as  an  accidental  homicide  but  as  an  intentional  murder; 
it  should  however  become  a  murder  with  extenuating  cir- 
cumstances. The  same  applies  to  an  accomplice  who  per- 
forms his  part  in  a  venture,  knowing  full  well  to  what  kind 
of  a  crime  he  is  lending  his  aid.  Such  is  the  case  of  a  drug- 
gist knowingly  selling  a  poison,  or  of  a  locksmith  consenting 
to  make  fase  keys.2  Even  in  the  classic  conception  of  com- 
plicity it  may  and  has  been  regarded  that  there  is  not  an 
identity  of  crime  for  principal  and  accomplice.3  The  latter's 
crime  may  well  be  regarded  as  the  same  as  that  of  the  prin- 

1  On  contingent  liability  see  a  very  suggestive  report  of  Liszt  to  the  24th 
Congress  of  German  jurists  (Verhandlungen  des  XXIVten  deutschen  Juris- 
tentages,  1897,  I,  p.  107,  seq.).  Also  the  thesis  of  M.  Raoul  Duval  (Paris, 
1900). 

1  See  the  notable  thesis  of  M.  Thibierge,  "La  notion  de  la  complicite" 
(fitude  critique),  Paris,  1898,  passim,  and  principally  pp.  45-46,  58,  65,  and 
73,  seq. 

3  See  the  subtle  and  engaging  theory  of  M.  Garraud,  "Trait6  th6orique  et 
pratique  du  droit  penal  frangais  (edition  1888),  Vol.  II,  p.  390,  seq. 


222         INDIVIDUALIZATION  OF  PUNISHMENT       [§  72 

cipal,  but  accompanied  by  extenuating  circumstances.  The 
assumption  of  a  necessary  mitigation  of  punishment  in  all 
cases  of  complicity  would  be  indefensible,  in  that  it  would 
imply  a  lesser  degree  of  criminality  on  the  part  of  the  ac- 
complice. The  contrary  is  often  the  case.  The  best  system 
is  that  incorporated  in  the  Swiss  draft,  which  permits  the 
judge  to  reduce  the  punishment  when  there  is  a  difference 
of  culpability.1  The  above  are  instances  of  wholly  justifiable 
mitigation.  They  involve  only  extenuation  with  reference 
to  responsibility;  and  this  does  not  consider  the  individualiza- 
tion  of  punishment  in  its  true  sense. 

One  may  however  conceive  a  legal  provision  so  framed 
as  to  provide  a  true  individualization  of  punishment.  This 
implies  a  legal  classification  which  shall  indicate  by  what 
criterion  each  of  the  classes  considered  shall  be  recognized; 
following  upon  such  a  scheme,  a  systematic  punishment 
adapted  to  each  class  must  be  prescribed.  Such  provisions 
fall  within  the  province  of  the  law;  and  it  is  along  this  line 
that  the  penal  legislation  of  the  future  should  be  directed. 
But  there  remains  a  possible  distinction.  The  law  clearly 
provides  only  the  general  basis  and  the  very  variable  factors 
entering  into  a  sentence,  leaving  to  the  judge  the  duty  of 
making  a  strictly  individual  classification  after  a  special 
study  of  each  individual;  it  thereby  becomes  a  most  desir- 
able legal  form  of  a  judicial  individualization.  But  the 
least  desirable  system  is  that  by  which  the  law  assumes  to 
supply  the  necessary  criterion  of  the  classification,  as  does 
our  law  of  1885  on  the  deportation  of  incorrigibles.  It  rests 
upon  an  assumption  that  is  always  uncertain  and  often  mis- 
taken; for  the  only  indication  of  the  nature  of  the  criminal 
which  it  considers  is  that  supplied  by  the  character  of  the 
offense;  and  that  is  wholly  inadequate.  Thus  it  is  often 

1  Preliminary  draft  of  the  Swiss  penal  code  (wording  of  1903,  art.  22). 


§  73]  LEGAL  INDIVIDUALIZATION  223 

said  that  infanticide  implies  a  perversion  of  the  maternal 
sentiment,  and  that  only  a  degraded  woman  would  be  guilty 
thereof.  Ecclesiastical  law,  however,  considers  that  infanti- 
cide may  often  be  the  act  of  desperate  or  unfortunate  women, 
and  that  it  would  involve  most  questionable  assumptions  to 
judge  these  persons  by  the  odium  of  the  crime  which  they 
have  committed. 

§  73.   Examples  of  False  Individualization 

To  make  an  individual  classification  through  an  auto- 
matic application  of  the  law  would  be  a  true  form  of  legal 
individualization;  and  the  law  of  May  27,  1885,  furnishes  a 
very  sad  example  thereof.  It  is  an  individualization  made 
at  random  with  the  hope  that  in  the  long  run  justice  will  be 
done;  and  this  may  be  true  of  this  law,  for  the  sentence  of 
deportation  is  imposed  according  as  the  individual  comes 
under  one  or  another  of  the  categories  of  the  law.  There  is 
thus  a  considerable  chance  that  the  legal  charge  will  indi- 
cate the  defendant's  incorrigibility.  But  why  should  not  the 
decision  be  left  to  the  judge?  He  alone  should  have  the  last 
word  in  such  cases.  He  deals  with  real  cases,  while  the  law 
deals  only  with  abstract  considerations.  Hence  the  law  can 
but  supply  the  judge  with  the  basis  of  individualization.  It 
should  not  itself  assume  to  make  the  individualization. 

A  similar  consideration  may  be  advanced  in  regard  to  the 
effect  of  the  motive  upon  the  severity  of  the  sentence.1  It 
has  frequently  been  proposed  to  introduce  into  the  law  a 
classification  of  the  various  motives  concerned  in  crime, 

1  See  particularly  the  excellent  work  of  Holtzendorff,  "Das  Verbrechen 
des  Mordes  und  die  Todesstrafe:  die  Psychologic  des  Mordes."  Also  the 
account,  by  Gorgon,  of  Alimena's  "Le  Premeditazione,"  in  the  Nouvelle  revue 
historique  du  droit  frangais  et  Stranger,  1889,  p.  792,  aeq.  Also  the  thesis 
cited  of  M.  Legrand,  on  "Premeditation"  (Paris,  1898),  and  that  of  M. 
Rigaud,  "De  1'influence  du  motif  en  matiere  criminelle"  (Paris,  Rousseau, 
1898). 


224         INDIVIDUALIZATION  OF  PUNISHMENT        [§  73 

with  the  purpose  of  enabling  the  law  to  judge  the  nature  of 
the  criminal  according  to  the  motive,  and  to  adjust  the  pun- 
ishment accordingly.  Thus  a  murder  may  have  been  in- 
spired by  very  base  and  perverse  motives,  —  for  purposes 
of  robbery,  or  possibly  by  mere  wanton  violence.  But  it 
may  have  been  inspired  by  motives  shared  in  common  with 
upright  men,  such  as  indignation  or  an  outburst  of  justifi- 
able anger.  It  was  proposed  to  have  the  law  consider  these 
several  motives,  classify  them  carefully,  and  according  to 
their  nature  and  character  reduce  or  increase  the  punish- 
ment. Such  provisions  were  made  by  Stooss  in  the  first 
Swiss  draft.  There  would  thus  be  a  form  of  legal  individual- 
ization  based  upon  an  assumption  derived  from  the  motive. 
But  the  question  at  issue  is  precisely  whether  the  motive 
should  serve  as  the  proper  basis  for  individualization  of  pun- 
ishment, or  whether  it  should  preferably  be  regarded  as  the 
true  criterion  by  which  to  gauge  responsibility.  This  issue 
should  likewise  be  committed  to  the  authority  of  the  judge; 
for  it  is  the  judge's  place  to  gauge  the  punishment.  Such 
questions  properly  belong  to  judicial  individualization.  We 
thus  return  to  the  principle,  above  set  forth,  that  all  indi- 
vidualization by  law  is  false,  in  that  it  is  based  upon  the 
question  of  responsibility  and  in  that  it  ignores  the  true 
nature  of  the  criminal. 

Let  us  consider  some  examples  taken  from  the  Italian 
penal  code.  The  punishment  is  lessened  in  cases  of  abortive 
attempt,  in  cases  of  complicity,  in  cases  of  crimes  committed 
in  foreign  lands.1  It  is  self-evident  that  these  several  causes 
of  extenuation  refer  to  a  modification  in  the  objective  char- 
acter of  the  crime  and  not  to  the  relative  psychological 
criminality  of  the  individual.  Thus  the  extenuation  in 
cases  of  attempt  arises  from  the  fact  that  the  agent  was 
1  The  Italian  Penal  Code.  arts.  61-62,  arts.  63-66,  arts.  3-6. 


§  73]  LEGAL  INDIVIDUALIZATION  225 

stopped  at  a  time  when,  through  no  merit  of  his  own,  he 
had  not  yet  achieved  his  purpose.  This  is  a  matter  of  chance. 
In  what  respect  does  this  lessen  his  culpability?  It  is  true 
that  the  injury  has  not  been  effected;  but  the  punishment 
is  not  intended  as  the  expiation  of  a  material  injury,  other- 
wise it  should  be  completely  cancelled  in  case  of  a  wholly 
unsuccessful  attempt.  It  is  the  guilt  that  is  to  be  punished, 
and  the  guilt  is  the  same.  So  far  as  concerns  the  sinfulness 
of  the  individual  and  the  punishment  that  he  deserves,  it 
cannot  be  urged  that  the  fact  of  having  been  stopped  in 
the  course  of  the  execution  has  any  bearing  upon  the  ques- 
tion. Extenuation  in  cases  of  complicity  arises  from  the 
fact  that  the  accomplice  is  only  the  accessory  and  is  subject 
to  a  leader  whom  he  follows.  But  it  is  a  common  practice 
for  criminal  gangs  to  assign  the  several  parts;  some  attack 
and  strike  the  blow,  others  keep  guard,  or  perform  some 
minor  part.  With  due  consideration  of  these  circumstances 
how  can  one  be  sure  that  some  are  less  culpable  than  others? 
Perhaps  those  least  incriminated  are  the  very  ones  who 
devised  the  crime.  The  man  who  struck  the  blow  may  have 
been  forced  to  act,  possibly  drugged  to  give  him  courage; 
the  others  took  it  upon  themselves  to  safeguard  the  exe- 
cution of  the  crime.  Viewed  from  without,  their  part  may 
appear  quite  accessory,  but  they  should  be  judged  and 
punished  according  to  their  inner  moral  participation.  In 
lessening  their  punishment  the  Italian  code  decides  in  ad- 
vance that  their  criminality  is  of  a  minor  degree.  This 
assumption  is  quite  gratuitous.  A  like  consideration  applies 
to  crimes  committed  in  foreign  lands.  The  ground  of  extenu- 
ation is  that  the  act  has  caused  no  injury  or  excitement 
in  the  land  in  which  it  occurs.  But  the  very  presence  of 
the  criminal  may  of  itself  be  a  considerable  disturbance. 
Next  is  urged  that  the  danger  or  injury  caused  by  the  crime 


226         INDIVIDUALIZATION  OF  PUNISHMENT        [§  73 

does  not  affect  the  fellow-citizens  of  the  country  to  which 
the  criminal  belongs.  But  the  danger  lies  not  in  the  crime 
and  not  in  the  past;  it  is  in  the  future,  and  in  the  person  of 
the  criminal.  A  released  criminal  becomes  a  common  dan- 
ger. What  matters  the  place  in  which  the  crime  has  been 
committed?  The  criminal  must  be  treated  according  to 
what  he  is,  with  a  view  of  lessening  the  danger  that  he  him- 
self carries.  Even  if  he  be  considered  only  in  terms  of  re- 
sponsibility, how  does  his  removal  from  the  boundaries  of 
his  country  diminish  his  culpability? 

As  a  last  example,  take  cases  of  alleged  diminished 
responsibility,  such  as  applies  to  persons  of  neuropathic 
disposition.  They  are  the  more  dangerous  in  that  their 
tendency  to  crime  is  purely  pathological.  They  are  not 
entirely  irresponsible;  hence  they  should  be  subjected  to 
punishment.  But  it  is  urged  that  as  their  responsibility 
is  less,  so  their  punishment  should  be  very  brief,  that 
they  should  be  restored  as  quickly  as  possible  to  freedom,  — 
a  procedure  that  is  the  more  dangerous  hi  that  such  offend- 
ers are  apt  to  act  on  a  sudden  impulse.  Seemingly  their 
greater  menace  results  in  the  prompter  restoration  of  their 
freedom.  The  true  question  is  to  determine  whether  in 
place  of  punishment  it  would  not  be  better  to  provide  special 
treatment  in  an  asylum.  That  a  minimum  of  detention 
should  be  fixed  in  accord  with  the  degree  of  responsibility 
is  right  enough,  but  it  is  yet  more  important  that  the  judge 
should  be  permitted  to  prolong  the  detention  if  public  safety 
demands  it  and  if  the  person  concerned  is  approaching  the 
stage  of  dementia. 

It  is  thus  seen  that  all  the  alleged  cases  of  legal  individ- 
ualization  are  but  cases  of  false  individualization.  Let  us 
accordingly  leave  the  field  of  the  law  and  reach  that  of 
judicial  individualization. 


§  74]  LEGAL  INDIVIDUALIZATION  227 

§  74.  Approach  to  Judicial  Individualization  and  the  Cases 
concerned 

That  the  judge  alone  is  capable  of  knowing  the  offender 
and  of  taking  account  of  what  he  is  may  be  conceded  with- 
out further  argument,  but  this  arbitrary  power  of  the  judge 
(for  so  it  must  be  called,  even  though  the  term  be  used 
without  prejudice)  nevertheless  raises  serious  difficulties.1 
There  is  a  special  difficulty  in  countries  where  the  jury  sys- 
tem obtains  and  where  a  division  of  function  exists  between 
the  professional  and  these  temporary  judges.  To  which 
of  the  two  shall  matters  pertaining  to  the  individualization 
of  punishment  be  entrusted? 

Account  must  first  be  taken  of  the  kind  of  decisions  that 
the  judge  was  formerly  called  upon  to  render.  If  individ- 
ualization is  mainly  designed  to  place  at  the  disposal  of  the 
judge  punishments  of  different  nature  according  to  the  char- 
acter of  the  criminals,  the  judge  will  have  two  types  of 
problems  to  solve,  the  one,  and  the  more  serious,  relating 
to  the  choice  of  punishment,  the  other,  to  its  duration.  The 
latter  will  hardly  differ  from  that  which  is  now  exercised 
in  the  French  law,  particularly  under  the  system  that  recog- 
nizes extenuating  circumstances.  Our  magistrates  already 
exercise  considerable  authority  in  this  respect.  Yet  such 
authority  could  be  made  yet  more  extensive,  as  is  provided 
by  the  penal  code  of  Holland.2  However  commendable 
such  provisions,  the  existing  provisions  involve  delicate 
questions  of  degrees  of  penalty,  and  the  difficulty  would 
not  be  increased  if  the  judge  were  given  further  authority 

1  M.  E.  Carnevale  in  a  series  of  notable  articles  "L'arbitrio  del  Giudice 
nell'  applicazione  della  pena"  in  the  Rivista  penale,  1897,  p.  109,  seq.\  p.  833, 
teq.,  has  touched  upon  one  of  the  most  difficult  points.    See  also  an  article 
by  M .  C.  de  Fence,  in  the  Revue  ptnitentiaire,  1898,  p.  507. 

2  Penal  Code  of  Holland,  art.  10  and  scq. 


228         INDIVTOUALIZATION  OF  PUNISHMENT       [§  74 

to  reduce  the  punishments;  indeed,  the  reverse  might  be 
the  case.  It  is  not  the  recognition  of  the  extreme  cases  — 
the  least  degree  of  criminality,  and  again  the  most  pro- 
nounced —  that  is  troublesome,  but  the  disposal  of  the 
doubtful  and  intermediate  cases.  It  is  easy  for  the  judge 
to  reach  an  opinion  in  regard  to  an  individual  who  might 
be  given  the  benefit  of  what  our  legal  provisions  call  ex- 
tenuating circumstances  ;  what  is  peculiarly  difficult  for  the 
intermediate  cases  is  to  find  the  exact  degree  of  clemency 
that  the  case  warrants  and  that  also  satisfies  the  demands 
of  a  sound  justice.  What  we  already  have  is  an  arbitrary 
judicial  power;  though  by  this  we  understand  not  an  un- 
equal and  partial  justice  but  a  justice  unhampered  by  a 
legal  criterion.  No  objections  are  made  to  the  present  sys- 
tem; and  we  may  admit  that  our  magistrates,  with  the  aid 
of  the  jury,  have  proved  its  worth.  They  may  be  said  to 
have  made  the  best  of  the  situation;  and  yet  further  progress 
is  possible.  No  one  proposes  a  return  to  the  hampered  and 
legally  restricted  procedures  of  older  regulations:  such  bar- 
riers serve  only  as  technical  protections  for  the  worst  and 
most  objectionable  forms  of  justice.  The  desideratum  is  a 
better  preparation  and  education  of  future  magistrates.1 
At  present  only  their  legal  education  is  considered.  If  this 
comprises  merely  an  ordinary  knowledge  of  the  statutes 
and  their  more  or  less  intricate  interpretation,  it  may  well 
be  of  secondary  importance  for  the  criminal  judge.  A  knowl- 
edge of  men  is  of  prime  importance.  In  place  of  an  off-hand 
impressionism  such  as  at  present  characterizes  the  decisions, 
there  should  be  substituted,  as  M.  Carnevale  demands,  a 
true  scientific  procedure.  Their  present  technical  prepara- 
tion is  presumably  adequate  to  enable  them  to  judge  the 

1  See  the  cautious  but  well  put  comments  in  M.  Cruppfs    "La  Cour 
d'assises,"  p.  123,  seq. 


§  74]  LEGAL  INDIVIDUALIZATION  229 

degree  of  punishment  as  conditioned  by  its  duration,  for 
this,  as  before,  is  still  to  depend  upon  the  crime  and  its  sub- 
jective gravity.  In  this  respect  any  one  with  a  little  judi- 
ciary experience  would  be  competent. 

But  the  further  and  serious  question  relates  to  the  choice 
of  punishment  in  accordance  with  the  psychological  clas- 
sification of  the  criminal.  In  this  respect  an  organized 
system  of  individualization  will  likewise  not  make  the  func- 
tion of  the  judge  any  more  difficult  than  it  is  now  under 
the  application  of  the  Berenger  law,  or  as  it  would  be  in 
dealing  with  the  incorrigible  classes,  if  the  criterion  of  incor- 
rigibility  were  left  to  the  verdict  of  the  judge,  as  the  Swiss 
draft  provides.  This  does  not  imply  that  at  present  the 
procedure  is  perfect  in  those  exceptional  cases  —  such  as 
that  of  parole  —  in  which  the  magistrates  undertake  penal 
individualization.  Their  education  inclines  them  to  pay 
special  attention  to  the  crime;  and  it  is  with  reference  to  the 
crime  that  they  are  tempted  to  grant  or  refuse  parole.  This 
tendency  does  not  appear  in  the  statistics  of  court  decisions, 
for  these  do  not  disclose  the  motives  that  have  guided  the 
bench  in  the  application  of  the  law  of  1891.  But  this  tendency 
may  be  inferred  from  certain  criticisms  made  by  the  magis- 
trates against  the  extension  of  the  Berenger  law  to  certain 
serious  offenses;1  and  likewise  from  the  confusion  that  tends 
to  prevail  between  the  admission  of  extenuating  circum- 
stances and  the  granting  of  parole,  the  one  being  considered 
as  a  first  step  of  clemency  necessary  to  pass  on  to  the  other. 
This  involves  a  confusion  of  principles  and  points  of  view. 
It  might  well  be  the  case  that  the  offender  is  worthy  of 
parole,  when  the  crime  in  itself  would  not  warrant  the  ad- 
mission of  extenuating  circumstances.  Different  points  of 
view  are  involved,  and  a  further  training  in  such  distinctions 

1  Revue  penitentiaire,  1897.  p.  491. 


230         INDIVIDUALIZATION  OF  PUNISHMENT       [§  74 

is  needed.  That  the  distinctions  seem  to  be  somewhat 
delicate  and  their  introduction  difficult  is  no  reason  for 
abandoning  a  worthy  procedure  or  for  returning  to  unwise 
measures  that  have  proved  inadequate.  The  adaptability 
of  the  Gallic  mind  should  readily  acquire  the  needed  tech- 
nical attainments.  Although  in  fifteen  years  we  have  not 
been  able  to  develop  a  truly  scientific  'regulation  of  pardons, 
it  does  not  prove  that  our  magistrates  are  incapable  of 
worthily  applying  individualization.  It  proves  only  that 
ways  and  means  must  be  established,  and  that  this  cannot 
be  done  in  a  day.  Our  magistrates,  impartial,  unquestion- 
ably honest,  and  thoroughly  trained  professionally,  are 
most  capable  to  outline  a  desirable  policy,  but  a  period  of 
tentative  experience  is  inevitable. 

The  special  difficulty  in  the  application  of  a  system  of 
parole  —  which  obtains  equally  in  dealing  with  extenuating 
circumstances  —  is  the  lack  of  scientific  principles  of  a  di- 
rective conception  and  point  of  departure;  and  this  should 
be  decidedly  reduced  under  a  system  of  well-regulated  in- 
dividualization. The  present  form  of  individualization  is 
sporadic  because  it  is  not  organized.  An  organic  and  scien- 
tific individualization  must  be  developed;  only  when  this 
shall  have  been  done,  will  our  magistrates  understand  what 
is  expected  of  them,  and  meet  the  expectation.  If,  for  ex- 
ample, they  are  authorized  to  determine  punishments  for 
incorrigibles,  they  will  know  very  well  that  they  must  con- 
sider not  alone  the  last  crime  committed  but  the  entire  life 
of  the  individual  and  everything  that  may  shed  light  upon 
his  character  and  temperament.  Likewise,  if  they  have 
at  their  disposal  purely  deterrent  punishments  that  make 
no  pretense  to  a  reformatory  discipline,  they  will  know  that 
they  have  to  ask  only  one  question:  Does  the  individual 
stand  in  need  of  a  reformatory  education  or  not?  To  face 


§  75]  LEGAL  INDIVIDUALIZATION  231 

a  problem  clearly  put  is  a  step  in  advance;  indeed,  it  is  the 
decisive  step. 

§  75.  The  Proper  Education  of  Magistrates 

The  question  how  the  magistrates  shall  become  capable 
of  solving  the  problem  remains.  Perhaps  a  psychological, 
as  well  as  a  legal  education  is  necessary.  Could  it  be  other- 
wise in  an  issue  that  is  a  matter  not  of  handling  arguments, 
but  of  dealing  with  the  realities  of  life  in  a  field  involving 
the  management  of  men  and  the  regulation  of  careers?  Are 
not  magistrates,  through  their  profession,  engaged  daily 
in  psychological  problems?  Whether  they  desire  it  or  not, 
they  must  consider  things  psychologically,  at  first  feeling 
their  way  by  intuition,  and  later  by  professional  acumen. 
But  judgment  of  this  type  they  must  make  and  cannot  avoid. 
The  mistake  consists  in  not  insisting  openly  and  profession- 
ally that  such  is  their  chief  function.  We  ask  that  they 
be  thus  instructed,  and  that  they  thus  qualify  for  the  ren- 
dering of  decisions.1  When  so  qualified  their  judgments 
will  be  sound  because  based  upon  sure  foundations.  Their 
formal  education  which  now  teaches  them  to  look  upon 
the  facts  uninfluenced  by  the  consideration  of  the  individ- 
ual, will  no  longer  be  at  odds  with  their  loyalty  to  a  humane 
justice,  which  equally  serves  the  interests  of  society  and 
leads  them  to  judge  the  man  rather  than  the  deed.  At 
present  they  practice  a  compromise,  a  thinly  disguised 
combination  of  the  two  tendencies,  and  reach  results  that 
are  satisfactory  to  no  one.  To  enable  them  to  act  for  the 
welfare  of  human  and  social  justice,  a  clear  and  frank  allow- 
ance must  be  made  for  both  interests  and  tendencies.  Let 

1  See  my  letter  to  M.  Paul  Desjardins  on  the  teaching  of  law,  in  Corre- 
spondance  mensuelle  de  1'Union  pour  la  verit6  (cahier  annexe  formant  post- 
scriptum  a  la  troisieme  serie  des  "Libres  entretiens":  Sur  la  reforme  des 
institutions  judiciaires,  1908). 


232         INDIVIDUALIZATION  OF  PUNISHMENT       [§76 

them  argue  in  terms  of  the  law  in  so  far  as  concerns  the 
status  of  the  deed  and  its  objective  appraisal;  let  them  in- 
creasingly consider  the  subjective  element  in  the  appraisal 
of  the  subjective  gravity  of  the  offense  in  its  bearing  upon 
the  severity  of  punishment,  thus  at  once  considering  the 
motive  as  well  as  the  objective  gravity  of  the  crime.  Here 
lies  the  practical  field  for  concessions  such  as  now  obtain 
between  the  spirit  of  legal  abstraction  and  that  of  psycho- 
logical observation.  Finally  in  a  third  respect,  that  of  the 
choice  of  punishment,  let  them  consider  only  the  individual 
and  his  character.  When  they  come  to  realize  that  all  this 
is  their  function  and  when  the  law  tells  them  this  in  the 
very  manner  by  which  it  organizes  punishments,  they  will 
be  in  full  exercise  of  their  prerogative.  The  question  will 
be  clearly  put.  We  may  have  full  confidence  that  they  will 
know  how  to  meet  it.  For  the  present,  it  is  enough  to  state 
the  problem. 

§  76.  The  Place  of  the  Jury  in  Individualization 

The  problem  presents  other  difficulties  in  determining 
the  proper  division  of  function  between  the  court  and  the 
jury;  and  it  must  be  recognized  that  almost  all  writers  and 
projects  that  mention  individualization  or  attempt  a  pre- 
liminary legal  formulation  thereof  have  neglected  to  con- 
sider the  jury.  They  have  argued  as  though  juries  did  not 
and  should  not  exist.  The  impression  obtains  that  the 
jury  system  does  not  readily  lend  itself  to  individualization. 
In  the  first  place  it  seems  impracticable  to  commit  ques- 
tions involving  psychological  analysis  to  so  emotional  and 
impulsive  an  expression  of  justice.  \  Yet  on  the  other  hand, 
if  the  power  of  determining  the  sentence  is  withdrawn  from 
the  jury  (as  occurred  in  1824  with  reference  to  extenuating 
circumstances)  juries  will  acquit  in  a  spirit  of  defiance. 


§  76]  LEGAL  INDIVIDUALIZATION  233 

There  will  be  the  latent  conflict  between  the  two  judicial 
factors  in  the  court  of  review.  Possibly  the  most  favorable 
solution  will  be  to  associate  with  the  magistrates  (some- 
what as  in  the  German  municipal  courts)  a  second  jury  of 
experts  appointed  to  determine  the  punishment.  Such  would 
be  composed  chiefly  of  physicians,  directors  of  reformatory 
institutions,  professional  educators,  and  others  qualified 
by  their  calling  to  judge  and  deal  with  men.  It  would  be 
not  an  ordinary  but  a  technical  jury,  the  members  of  which 
would  be  obtained  by  an  eliminative  process  of  successive 
selections.  The  ordinary  jury,  drawn  by  lot,  as  at  present, 
would  remain  the  judge  of  the  facts;  it  would  report  upon 
the  material  circumstances  and  upon  the  question  of  intent 
and  mental  condition,  but  it  would  render  this  opinion 
without  any  technical  fitness.  Next  a  technical  jury  would 
determine  the  punishment  and  become  a  jury  of  individual- 
ization.  Lastly,  the  court,  as  at  present,  would  set  the 
term  of  sentence.1 

Such  a  plan  involves  the  admission  that  the  ordinary  jury 
acting  without  assistance,  is  not  and  cannot  be  the  judge 
of  questions  of  individualization.  The  point  needs  no  de- 
tailed proof.  The  purpose  of  the  jury  system  is  to  furnish 
an  approximate  safeguard  of  personal  freedom  and  repu- 
tation. It  has  also  a  second  purpose.  No  mundane  social 
system  can  hope  to  attain  absolute  justice,  for  all  social 
justice  is  but  a  procedure  of  the  social  order.  Such  proce- 
dure cannot  approach  an  ideal  justice  that  scrutinizes  the 
individual  conscience  and  ascertains  the  measure  of  free- 
dom exercised.  When  once  this  is  recognized  we  shall  admit 
that  any  such  pretense  will  but  lead  to  unfortunate  results; 
we  shall  recognize  that  human  justice  cannot  replace  divine 
justice;  and  that  the  greatest  and  fairest  satisfaction  will 
1  See  note,  p.  293,  at  the  end  of  the  chapter. 


234         INDIVIDUALIZATION  OF  PUNISHMENT        [§  76 

be  given  by  following  the  popular  conception  of  justice  and 
the  highest  approved  standards.  Society  must  ever  confirm 
and  endorse  the  conception  of  justice  in  the  popular  con- 
sciousness, and  take  no  chance  of  running  counter  thereto. 
For  these  reasons  the  jury,  as  a  part  of  such  public  opinion, 
in  its  judgments  and  considerations,  takes  account  not  alone 
of  questions  of  fact  but  of  prevailing  notions  of  justice;  and 
these  likewise  shape  the  verdicts  of  condemnation  or  ac- 
quittal. The  jury  thus  becomes  the  judge  not  alone  of  the 
evidence  but  of  the  general  question  of  culpability;  and 
thereby  exercises  the  dual  function  just  alluded  to.  If  the 
jury,  speaking  in  behalf  of  common  opinion,  confirms  the 
culpability,  the  cause  of  personal  liberty  will  have  been 
adequately  safeguarded;  it  will,  at  all  events,  have  been 
established  that  the  exercise  of  justice  in  accord  with  the 
popular  conception  demands  a  condemnation.  To  thus 
express  the  popular  sentiment  is  the  complete  function  of 
the  jury.  It  is  not  qualified  to  decide  the  question  of  choice 
and  duration  of  punishment.  The  jury,  representing  public 
opinion,  demands  a  condemnation  and  obtains  it.  The 
determination  of  the  sentence  involves  technical  questions 
beyond  the  jury's  capacity,  and  issues  in  which  popular 
opinion  should  not  decide  because  it  lacks  the  requisite 
knowledge.  Hence  the  advisability  of  associating  the  jury 
with  the  court  which  is  authorized  to  fix  the  penalty. 

There  remains  in  the  system  in  vogue  the  fear  of  acquit- 
tals through  mistrust  or  ill-will.  That  was  the  reason  why 
in  1832  the  decision  relating  to  the  admission  of  extenuating 
circumstances  was  assigned  to  the  jury;  and  it  might  have 
been  better  in  that  case  also  to  have  adopted  a  compromise. 
But  the  procedure  authorized  in  1832  is  still  useful,  particu- 
larly if  ever  there  be  established  an  intermediate  jury  for 
individualization.  As  at  present  the  ordinary  jury  will  re- 


§76]  LEGAL  INDIVIDUALIZATION  235 

tain  the  right  of  admitting  extenuating  circumstances,  either 
in  the  present  indefinite  form  or  in  some  more  precise  form, 
such  as  that  proposed  in  the  Swiss  draft;  and  such  decision 
will  bear  upon  the  extenuation  of  punishment  so  far  as  per- 
tains to  the  maximum  set  by  the  court.  Why  then,  if  the 
court  may  assign  punishments  of  different  nature  and  if  the 
choice  is  not  determined  by  the  nature  of  the  offense  (as  ob- 
tains in  such  cases  as  political  offenses,  or  again  in  duelling, 
or  in  offenses  due  to  negligence),  why  should  not  the  jury  be 
able  to  determine  the  kind  of  punishment  and  not  merely 
its  term?  Assuredly  the  treatment  should  not  be  specified, 
for  that  would  confer  the  control  of  individualization;  but 
if  there  were  an  intermediate  jury  charged  with  the  decision 
on  that  count,  it  could  require  the  court  to  refer  the  issue  to 
this  special  jury.  This  would  be  quite  simple  if  but  three 
principal  groups  of  punishment  be  admitted.  Whenever 
the  jury  makes  no  special  recommendation,  the  ordinary 
common-law  punishment  would  apply,  by  way  of  a  correc- 
tive or  reformatory  punishment.  However,  the  jury  may 
be  uncertain  as  to  the  choice  of  punishment.  It  may  be 
that  the  defendant  is  an  occasional  offender  who  still  remains 
a  worthy  man,  for  whom  a  different  kind  of  punishment  is 
appropriate,  and  it  may  be  that  he  is  an  incorrigible  who 
should  be  eliminated.  In  either  case  the  jury  has  but  to 
decide  that  there  shall  be  a  reference  to  the  special  jury  for 
the  choice  of  punishment.  Such  division  of  function  would 
furnish  all  the  necessary  guarantees. 

Yet  this  is  but  one  possible  procedure;  there  are  others, 
and  possibly  the  simplest  would  be,  as  is  now  proposed,  to 
associate  the  jury  and  the  court  in  the  formulation  of  the 
punishment.  Whether  the  last  or  some  other  more  prefer- 
able procedure  be  adopted,  it  is  clear  that  the  difficulty  does 
not  lie  there.  Practical  applications,  as  is  always  the  case 


236          INDIVIDUALIZATION  OF  PUNISHMENT        [§  76 

whenever  progressive  ideals  are  to  be  introduced,  will  de- 
velop their  own  institutions,  and  a  practicable  system  will 
emerge.  The  main  point  is  to  become  convinced  of  the 
need  of  reform  and  to  desire  its  introduction.  We  thus 
reach  the  commanding  consideration:  How  shall  this  reform 
be  organized?  What  are  its  essential  principles? 


CHAPTER  IX 

JUDICIAL  INDIVIDUALIZATION 

§  77.  Older  Forms  of  Individualization. 

§  78.   The  Analysis  and  Place  of  the  Motive. 

§  79.   A  Second  Interpretation  of  the  Motive:  the  Psychological  Factor. 

§  80.   Difficulties  in  the  Application  of  the  Motive  to  Punishment. 

§  81.   A  Third  Interpretation  of  the  Motive:  the  Moral  Status. 

§  82.   Individualization  and  Political  Crimes. 

§  83.   Individualization  in  the  Italian  Penal  Code. 

§  84.   Principles  underlying  Individualization:  Uniform  Punishments. 

§  85.   Legal  Individualization  for  Special  Offenses  or  Circumstances. 

§  86.  The  System  of  Parallel  Punishments;  Punishment  and  Social  Dis- 
honor. 

§  87.   The  Factors  entering  into  the  Classification  of  Criminals. 

§  88.  A  Tentative  System  of  Individualization;  Static  and  Dynamic  Crim- 
inality. 

§  89.   The  detailed  Classification  of  Criminals. 

§  90.   Concessions  to  other  Principles. 

§  91.   Special  Types  of  Individualization. 

§  92.  Possible  Extensions  of  Individualization;  Relation  to  Preventive 
Measures. 

§  77.   Older  Forms  of  Individualization 

WE  shall  now  undertake  a  brief  survey  setting  forth  the 
basis  on  which  judicial  individualization  shall  proceed.  This 
question  cannot  be  solved  independently.  It  is  indissolubly 
bound  up  with  a  series  of  problems  that  relate  to  the  regula- 
tion of  punishment.  Since  individualization  implies  the  in- 
troduction of  punishments  of  a  different  character  for  the 
different  kinds  of  criminals,  a  two-fold  problem  arises:  first, 
to  establish  a  classification  of  criminals;  and  second,  to  de- 
termine the  punishments  appropriate  to  the  several  classes. 

Let  us  review  the  principal  measures  that  have  been  pro- 

237 


238         INDIVIDUALIZATION  OF  PUNISHMENT       [§  77 

posed  in  favor  of  permitting  the  judge  to  apply  the  most 
highly  individualized  punishments. 

We  begin  with  the  principle  which  makes  the  extenuation 
or  aggravation  of  the  punishment  depend  upon  the  motives 
of  the  crime.  This  theory  or  system  of  "motives"  l  has  been 
somewhat  vaguely  outlined  in  several  modern  legislations  and 
projects;  and  it  has  received  a  precise  and  scholarly  formu- 
lation in  the  Swiss  preliminary  draft,  particularly  in  its  first 
form.2 

The  Swiss  preliminary  draft  does  not  adopt  the  French 
system  of  wholly  indefinite  extenuating  circumstances,  which 
commits  their  determination  solely  to  the  judge.  It  was 
held  that  this  would  make  the  extenuating  circumtances 
play  a  double  rdle,  of  which  the  second  was  that  of  grant- 
ing a  reduction  of  the  legal  punishment  solely  because,  under 
the  law,  it  seemed  excessive.  This  was  not  compatible 
with  the  spirit  of  a  new  penal  code,  which,  shaped  by  the 
demands  of  public  sentiment,  could  not  further  limit  the 
formulated  consensus.  It  may  be  replied  that  codes  once 
formulated  do  not  change,  while  public  opinion  does;  and 
that  popular  notions  in  regard  to  criminality  may  thus 
quickly  come  to  be  out  of  relation  with  the  penalties  of  the 
code.  The  scale  of  penalties  is  based  upon  the  social  gravity 
of  each  infraction;  and  naturally  according  to  the  times 
and  customs,  a  different  conception  will  prevail.  If  punish- 
ments are  to  be  neither  too  lenient  nor  too  severe  but  re- 
main in  satisfactory  accord  with  popular  sentiment,  there 
must  be  ways  of  maintaining  the  punishment  at  such  a 
level.  Ballast  and  a  safety-valve  must  be  provided.  Exten- 
uating circumstances  in  an  indefinite  form  are  well  designed 

1  See  the  work,  previously  cited,  of  Holtzendor/,  "Das  Verbrechen  des 
Mordes  und  die  Todesstrafe." 

1  "  Avant-projet  Suisse,"  first  edition,  art.  37,  and  art.  39. 


§  78]  JUDICIAL  INDIVIDUALIZATION  239 

for  this  service.  However,  it  may  ensue  that  in  regard  to 
certain  offenses  the  legal  punishment  will  be  deemed  too 
severe  even  in  the  absence  of  condoning  motives;  and  such 
bias  will  lead  to  acquittal.  The  Swiss  preliminary  draft  in 
the  scale  of  its  penalties  has  not  considered  this  point.  It 
admits  only  specific  extenuating  circumstances.  It  holds 
that  the  law  should  arrange  the  different  causes  of  extenua- 
tion or  aggravation  in  very  general  classes.  Accordingly  it 
provides,  particularly  in  its  first  form,  a  legal  classification 
of  the  different  motives  that  may  give  rise  to  crime.  Ac- 
cording as  these  motives  imply  a  certain  measure  of  per- 
sisting virtue,  or  on  the  other  hand  a  deeper  degree  of 
perversity,  the  motive  becomes  a  ground  of  extenuation 
or  aggravation. 

It  is  quite  right  that  the  consideration  of  the  motive  should 
affect  the  term,  and  through  it  the  degree  of  punishment. 
But  if  it  goes  no  further,  the  system  is  not  adequate.  The 
fixing  of  the  term  of  the  punishment  in  effect  involves  the 
determination  of  its  character;  and  the  point  at  issue  is  pre- 
cisely whether  the  motive  is  a  sufficient  criterion  whereby 
to  determine  the  nature  and  the  details  of  the  punishment. 
For  that  purpose  a  true  conception  of  the  motive  and  what 
it  involves  is  indispensable.  Liszt  has  contributed  a  very 
acute  and  penetrating  analysis  of  status  of  motives,1  the 
influence  of  which  will  appear  in  the  exposition  to  follow. 

§  78.  The  Analysis  and  Place  of  the  Motive 
In  the  sense  commonly  used  the  motive  is  confused  pri- 
marily with  the  purpose  sought,  the  end  which  the  criminal 

1  Liszt,  "Die  psychologischen  Grundlagen  der  Kriminalpolitik,"  in  his 
Review  (Zeit.f.  d.  ges.  Str,  R.  W.,  1896,  p.  477,  particularly  p.  483,  seq.);  and 
Kraus,  "Das  Motiv  zur  psychologischethischen  Grundlegung  des  Strafrechts" 
(same  Review,  1897,  p.  467,  seq.).  Also  the  thesis,  cited  above,  of  M.  Legrand, 
"De  la  premeditation,"  p.  186,  seq.,  and  that  of  M.  Rigaud,  "De  1'influence 
du  motif,"  p.  7,  seq. 


240         INDIVIDUALIZATION  OP  PUNISHMENT        [§  78 

had  in  mind.  Take  the  case  of  a  man  who  has  killed  another 
for  purposes  of  robbery;  robbery  is  then  said  to  be  the  mo- 
tive of  the  murder.  Or  take  the  case  of  an  heir  who  poisons 
the  man  from  whom  he  is  to  inherit;  the  motive  of  the  crime 
is  prematurely  to  secure  the  inheritance.  In  another  in- 
stance a  man  sets  fire  to  his  house  in  order  to  obtain  the 
insurance;  or  a  thief  breaks  into  the  safe  of  a  bank  to  pay 
his  gambling  debts.  Such  cases  may  be  indefinitely  varied. 
The  motive  is  the  advantage  to  be  gained  from  committing 
the  crime.  Thus  considered,  the  motive  has  no  real  value 
in  criminal  law  except  as  a  symptom.  It  serves  to  complete 
the  account  of  the  crime  as  planned;  it  illuminates  and  in- 
terprets it.  It  sets  the  crime  in  proper  relation  to  the  pur- 
pose of  the  criminal,  for  a  crime  is  never  an  end  in  and  by 
itself;  it  is  almost  always  a  means  to  effect  a  more  remote 
purpose.  Except  under  the  sway  of  a  purely  diabolical  pas- 
sion, murder  is  not  committed  for  the  sake  of  killing;  mur- 
der is  a  means  to  effect  a  definite  purpose,  and  this  purpose 
is  the  true  end  of  the  culprit.  It  is  that  which  dominates  the 
act.  For  the  criminal  resolve,  meaning  thereby  the  volun- 
tary act  that  consummates  the  crime,  never  furnishes  an 
adequate  conception  of  the  crime.  The  legal  view  of  the  in- 
tent detaches  the  crime  from  the  true  will  of  the  individual, 
making  it  an  independent  act  of  will,  while  actually  it  is 
only  a  factor  in  an  integral  whole;  and  in  the  totality  the 
commanding  idea  is  the  final  purpose.  Take  the  case  of  a 
thief  caught  in  the  act.  To  avoid  arrest  or  prosecution  he 
commits  murder.  Clearly  as  a  deliberate  intent  he  had  no 
design  of  murder.  He  would  not  assassinate  in  cold  blood. 
His  purpose  was  to  escape  the  police  and  the  trial.  To  es- 
cape, it  was  necessary  to  get  rid  of  a  witness,  and  for  that 
he  had  to  murder;  and  so  he  committed  the  murder.  The 
whole  tragedy  occurred  in  a  moment;  the  three  successive 


§  78]  JUDICIAL  INDIVIDUALIZATION  241 

acts  of  will  were  instantly  conceived  and  merged.  The 
whole  action  expressed  a  single  will;  the  steps  were  acts  of 
will,  determined  by  the  purpose  designed  and  accepted; 
they  followed  upon  it.  To  understand  and  judge  the  crime, 
the  situation  as  a  whole  with  its  psychological  setting  must 
be  reproduced.  The  act  of  will  must  be  regarded  as  a  whole, 
and  the  part  which  the  crime  played  therein  duly  noted. 
The  purpose  dominates  the  act.  Clearly,  however  imper- 
fectly, the  purpose  alone  reveals  the  character  of  the  agent. 
Yet  without  other  considerations  it  would  be  totally  inade- 
quate to  serve  as  the  basis  of  a  psychological  classification 
of  criminals.  Let  us  consider  the  situation  more  in  detail. 

Take  the  case  of  a  man  who  poisons  the  person  from  whom 
he  expects  to  inherit.  This  is  a  sign  of  avarice,  a  greed  for 
money.  But  the  world  is  full  of  people  thus  affected,  who, 
fortunately,  are  quite  incapable  of  committing  murder  to 
satisfy  their  desires.  The  analysis  of  the  case  thus  involves 
a  step  beyond  this  simple  desire  for  wealth  and  gain;  it  must 
include  all  the  motives  associated  with  the  purpose  of  the 
crime.  Take  the  example  of  a  faithless  cashier  who  ap- 
propriates trust  funds  to  pay  a  gambling  debt.  This  is  an 
abuse  of  confidence.  What  follows  from  the  motive  of  the 
theft  is  that  the  cashier  was  possessed  by  the  feeling  that  a 
gambling  debt  is  a  debt  of  honor,  that  must  be  paid  at  all  costs. 
The  majority  of  gamblers  share  this  feeling  without  thereby 
becoming  dishonest.  To  wish  to  pay  one's  debts,  even  if  they 
are  not  gambling  debts,  is  an  honorable  desire.  If  this  prin- 
ciple goes  so  far  as  to  lead  to  an  act  of  indiscretion,  a  further 
examination  of  the  chain  of  motives  becomes  necessary.  It 
at  once  becomes  clear  that  this  desire  to  pay  one's  debts  is 
not  the  definite  purpose  that  determined  action,  for  if  this 
feeling  is  strong  enough  to  lead  to  theft,  it  indicates  that 
beside  the  desire  to  discharge  an  obligation  there  was  the  in- 


242         INDIVIDUALIZATION  OF  PUNISHMENT       [§  78 

direct  or  more  immediate  purpose  of  escaping  arrest,  ruin,  or 
dishonor;  and  it  is  this  final  purpose  that  counts.  But  how 
does  this  final  purpose  enlighten  us  in  regard  to  the  criminal- 
ity of  the  agent?  Everybody,  even  the  most  honest  of  us, 
wishes  to  avoid  ruin  and  dishonor;  yet  most  men  would  be 
wholly  incapable  of  committing  theft  to  avoid  such  a  ca- 
lamity. To  induce  one  to  steal  involves  the  presence  of 
an  additional  quality,  the  possibility  of  bringing  to  the  sur- 
face a  tendency  to  dishonesty  (the  improbita  of  Garofalo), 
which  in  turn  may  be  quite  momentary  and  incidental,  or 
may  be  a  fundamental  trait  of  character.  An  intense  desire 
to  escape  ruin  brings  to  the  surface  a  dishonest  streak,  or, 
possibly,  it  discloses  an  underlying,  latent  trend  of  dishon- 
esty ready  to  assert  itself;  and  for  the  moment  this  dishonest 
tendency  takes  possession  and  overcomes  all  opposition.  It 
is  responsible  for  the  action,  and  in  it  lies  the  mainspring  of 
the  crime.  Yet  clearly  the  purpose  sought  in  the  act  in  no 
manner  reveals  the  existence  of  this  dishonest  streak. 

Yet  in  the  second  example  above  given,  that  of  murder, 
it  appears  that  the  motive  is  somewhat  different  from  that 
in  the  other  cases.  In  the  case  of  the  man  who  murders  for 
money,  the  incentive,  apparently,  is  greed;  and  the  motive 
thus  reveals  an  innate  quality  or  trait.  Yet  this  inference 
may  be  superficial.  At  all  events  the  purpose  for  which  the 
murderer  wanted  money  is  an  essential  consideration.  It 
may  be  for  the  same  reason  that  obtained  in  the  case  of  the 
cashier,  namely,  to  pay  a  gambling  debt,  or  to  avoid  arrest 
and  ruin.  The  complete  account  requires  the  attempt  to 
find  the  motive  for  the  motive;  and  even  then  we  do  not 
reach  a  motive  that  may  serve  as  an  adequate  criterion  of 
the  subjective  criminality  of  the  agent.  What  we  really 
find  are  two  resolutions  of  a  criminal  character,  one  follow- 
ing upon  the  other,  both  demanding  for  their  comprehension 


§  79]  JUDICIAL  INDIVIDUALIZATION  243 

the  consideration  of  yet  further  motives,  which  the  end  in 
view  as  above  considered  does  not  disclose.  Thus  the  truly 
final  purpose  is  to  avoid  arrest  and  ruin;  and  that  necessi- 
tates robbery.  Accordingly,  it  must  be  made  plain  through 
what  trait  of  character  the  decision  to  steal  becomes  effec- 
tive. It  appeared,  moreover,  that  to  accomplish  the  theft, 
it  became  necessary  to  murder.  It  must  similarly  be  ex- 
plained upon  the  basis  of  what  trait  of  character  the  deci- 
sion to  murder  became  effective.  The  trait  which  explains 
the  murder  may  be  not  at  all  the  same  as  that  which  explains 
the  theft.  The  final  purpose,  which  is  to  avoid  arrest  and 
to  find  the  wherewithal  to  pay  one's  debts,  gives  no  hint 
of  these  complex  traits  of  character.  Thus,  once  more,  the 
final  purpose  becomes  a  motive  which  is  quite  non-committal 
in  its  bearing  upon  the  conception  of  criminality.  It  reveals 
nothing  essential  in  regard  to  the  criminality  of  the  agent. 
To  be  thus  serviceable  a  motive  must  be  reached  that  un- 
mistakably discloses  a  distinctive  trait  of  character.  Thus 
stealing  for  the  professional  thief  is  a  business  and  he  steals 
for  the  sake  of  stealing;  his  purpose  is  to  get  a  living  at 
the  cost  of  others.  The  alleged  motive  has  no  other  value 
than  as  a  symptom  and  index  of  the  lack  of  honesty,  of  the 
existence  of  the  anti-social  tendencies  of  the  thief.  From 
the  penal  point  of  view  this  trait  of  character,  this  condition 
of  latent  criminality,  is  the  important  thing.  It  constitutes 
the  true  motive  to  be  considered;  while  the  end  pursued  is 
to  be  taken  into  account  only  as  an  expression  of  the  criminal 
state  of  mind. 

§  79.   A  Second  Interpretation  of  the  Motive :  the  Psycho- 
logical Factor 

For  purposes  of  punishment  the  motive  in  the  sense  first 
considered  has  no  real  significance;  and  that  for  two  reasons: 


244         INDIVIDUALIZATION  OF  PUNISHMENT       [§  79 

first,  that  commonly  it  reveals  nothing  in  regard  to  the 
criminal;  and  second,  that  when  it  reveals  a  criminal  trend, 
it  is  this  trend,  not  the  manner  of  its  expression,  that  forms 
the  essential  basis  of  the  criminality.  We  thus  reach  a 
second  conception  of  motive  which,  in  effect,  agrees  with 
that  adopted  by  the  Swiss  preliminary  draft. 

This  analysis  shows  that  the  purpose  sought  —  for  ex- 
ample the  desire  to  get  money  or  to  avoid  ruin  —  is  not  in 
itself  criminal.  Before  such  a  purpose  leads  to  crime,  it 
must  arouse  or  bring  into  play  the  impulse  or  trait  of  char- 
acter or  latent  tendency  that  makes  one  resort  to  a  criminal 
measure.  A  man  in  desperate  straits  may  feel  a  growing 
desire  to  steal.  He  knows  very  well  that  he  is  contemplating 
a  dishonest  action,  but  the  moment  that  the  thought  of 
theft  is  lodged  in  his  mind  the  original  purpose  thereof  drops 
out  of  sight.  At  first  his  one  thought  is  to  find  money;  later 
this  vague  and  remote  purpose  becomes  specialized,  and 
takes  a  definite  form;  it  appears  as  the  thought  of  the  im- 
mediate step  to  be  taken,  which  is  the  act  of  theft.  His 
entire  reflection  leads  to  this  fixed  idea  of  theft,  and  pres- 
ently this  engaging  consideration  brings  into  play  impulses 
that  are  new  in  his  experience  in  that  they  are  not  concerned 
with  finding  money  in  honest  ways.  There  then  ensues  a 
contest  between  the  instinct  of  uprightness  and  honesty, 
and  its  opposite,  the  suggestion  that  the  duty  of  honesty 
may  be  set  aside.  The  first  suggestion  of  this  possibility 
acts  subconsciously,  and,  as  it  grows,  it  takes  possession 
of  the  man,  and  finally,  if  it  prevails,  becomes  the  decisive 
and  determining  factor  of  the  act.  Psychologically  the 
immediate  cause  of  the  criminal  act  is  not  the  advantage 
to  be  gained,  but  the  impulse  or  trait  of  character,  which 
in  turn  yields  to  a  general  temptation  rather  than  to  the 
suggestion  of  a  specific  act.  Such  feelings  or  instincts  form 


§  79]  JUDICIAL  INDIVIDUALIZATION  245 

the  true  mainspring  of  the  act.  If  the  desired  advantage 
had  not  awakened  a  criminal  or  immoral  tendency  the  crim- 
inal act  would  never  have  been  committed.  An  honest  man, 
however  urgently  in  need  of  money  which  he  seeks  in  every 
legitimate  way  in  the  pursuit  of  his  purpose,  will  never 
entertain  the  thought  of  stealing.  Such  a  thought  comes 
forward  only  if  under  the  pressure  of  necessity  it  appeals 
to  a  latent  tendency,  which  is  allied  to  the  impulse  of  dis- 
honesty or  criminality. 

This  psychological  factor  constitutes  the  motive  in  the 
second  sense  of  the  word.  In  place  of  considering  the  con- 
templated purpose  which  served  to  arouse  and  stimulate 
the  inherent  criminal  tendency,  it  is  the  psychological  factor 
thus  aroused  by  the  end  in  view  that  must  be  taken  into 
consideration  and  regarded  as  the  real  motive.1  The  motive 
in  the  second  sense  may  thus  be  defined  as  the  reaction 
aroused  by  the  final  purpose  which  the  agent  has  hi  view 
and  which  becomes  the  immediate  and  psychological  cause 
of  the  criminal  action.  It  is  in  this  sense  that  the  Swiss 
draft  interprets  the  motive.  Thus  the  first  draft  cites  as 
a  cause  for  the  aggravation  of  punishment  such  circum- 
stances as  that  the  action  was  done  through  baseness  of 
character,  through  deviltry,  brutality,  trickery,  vengeance, 
greed,  malice,  or  pleasure  in  crime.  These  motives  as  gen- 
eral grounds  for  aggravation  were  withdrawn  from  the  second 
draft,  but  they  reappear  with  reference  to  particular  crimes 
or  offenses,  such  as  murder  (Art.  52)  or  injury  to  property 
(Art.  79).  As  extenuating  motives  the  Swiss  draft  speaks 
of  honorable  motives;  the  first  draft  calls  them  refined 
motives.  The  expression  appears  somewhat  extreme  as 
applied  to  a  crime  or  misdemeanor.  It  seems  out  of  place 
to  speak  of  a  crime  as  incited  by  refined  or  exalted  motives. 
1  Liszt,  "Die  psychol.  Grundlagen  der  Kriminalpolitik "  p.  486. 


246         INDIVIDUALIZATION  OF  PUNISHMENT       [§  79 

It  seems  better  to  speak  of  them  as  honorable  motives. 
Perhaps  it  would  have  been  better,  as  was  proposed  in  the 
commission,  to  use  a  negative  form,  and  speak  of  motives 
that  carry  no  dishonor  or  imply  no  degenerate  trait.  At 
all  events  it  is  evident  that  in  all  cases  it  is  not  the  final  end 
sought  but  the  tendency  or  psychological  factor  which  this 
purpose  arouses  or  stimulates,  that  becomes  the  determining 
cause  of  the  crime. 

Here  we  are  clearly  in  presence  of  a  psychological  fact 
that  has  a  real  value  for  penology,  but  its  precise  value  is 
difficult  to  determine.  The  same  objection  as  applies  to 
the  acceptance  of  the  final  purpose  as  a  criterion  may  again 
be  urged;  namely,  that  such  tendencies  may  exist  apart 
from  any  criminal  manifestation,  and  that  thus  they  cannot 
be  considered  as  necessarily  containing  the  germ  of  a  crim- 
inal trait.  It  is  true  that  one  may  have  a  low  character, 
be  moved  by  feelings  of  vengeance  or  greed,  without  neces- 
sarily becoming  criminal;  and  if,  as  the  Italian  school  holds, 
punishment  has  no  other  end  than  the  prevention  of  the 
repetition  of  crime,  one  could  hardly  accept  the  presence 
of  a  tendency  to  vice  or  greed  as  a  probable  indication  of 
its  becoming  a  source  of  crime  in  the  future.  Further  evi- 
dence would  be  needed:  it  would  have  to  be  determined 
whether  this  tendency  is  strong  enough  to  bring  about  a 
further  criminal  action,  and,  assuming  it  to  be  so,  whether 
it  would  induce  the  habit  of  crime,  or  whether,  perhaps,  it 
may  not  in  the  first  instance  have  been  the  issue  of  a  pas- 
sionate and  momentary  outburst  under  the  pressure  of  cir- 
cumstances; and  secondly,  it  would  have  to  be  determined 
whether  this  psychological  factor,  supposing  it  sufficiently 
powerful  to  induce  the  habit  of  crime,  was  innate  or  at  least 
antedated  the  crime  committed,  or  whether  it  was  incited 
solely  by  the  momentary  purpose  entertained.  In  the  one 


§80]  JUDICIAL  INDIVIDUALIZATION  247 

case  there  is  a  chance  that  this  psychological  factor  will 
not  reassert  itself;  in  the  other  it  forms  part  of  the  nature 
of  the  individual  and  must  be  treated  as  a  permanent  menace. 
These  two  proofs  are  in  no  way  furnished  by  the  existence 
of  a  tendency  to  greed  or  to  evil  passion  as  an  efficient  cause 
of  crime. 

§  80.  Difficulties  in  the  Application  of  the  Motive  to 
Punishment 

If  this  view  is  valid,  this  second  conception  of  a  motive 
will  likewise  fail  to  furnish  a  scientific  classification  of  crim- 
inals, or  at  least  fail  to  indicate  the  kind  of  punishment 
suitable  to  the  individual.  It  is  important  to  recognize 
that  to  be  of  service  to  penology  by  prescribing  the  char- 
acter of  punishment,  this  second  conception  of  the  motive 
must  be  developed  more  thoroughly.  In  proof  thereof  con- 
sider that  it  may  well  happen  that  wholly  debased  natures 
may  at  times  commit  crimes  incited,  to  use  the  language 
of  the  Swiss  draft,  by  honorable  motives.  Take  the  case 
of  a  professional  criminal,  a  thief  who,  perhaps,  has  already 
been  guilty  of  murder.  He  is  led  to  commit  a  murder  with 
the  sole  motive  of  preventing  an  evil  deed.  He  is  witness, 
for  example,  of  a  fray,  in  the  course  of  which  one  of  his  com- 
panions calls  upon  him  to  commit  a  dastardly  attack,  — 
let  us  say  that  he  proposes  to  assault  a  woman.  The  pro- 
posal arouses  a  feeling  of  moral  revulsion.  Considering 
what  he  is,  this  is  clearly  a  generous  sentiment.  He  may 
have  the  courage  to  come  to  the  defense  of  the  threatened 
victim  and  attack  the  fellow.  If  hi  the  course  of  the  fight 
he  strikes  a  hard  blow  that  kills  his  companion,  he  may 
have  a  legitimate  defense;  but  if,  in  place  of  this,  he  takes 
him  by  surprise  from  behind  and  kills  him  in  cold  blood, 
knowing  full  well  that  he  is  attempting  and  committing  a 


248         INDIVIDUALIZATION  OF  PUNISHMENT        [§  80 

murder,  then  there  will  be  no  desperate  situation,  no  legiti- 
mate defense  to  justify  the  crime.  It  becomes  a  clear  case 
of  murder.  Yet  it  is  proper  to  take  account  of  the  feeling 
of  generosity  that  enters  into  such  a  case  to  mitigate  the 
punishment.  But  suppose  that  the  judge  has  at  his  disposal 
different  kinds  of  punishment,  some  designed  for  those  by 
nature  honest  who  have  no  need  of  reformation,  others 
designed  for  perverts  whose  re-education  is  to  be  attempted. 
It  may  indeed  be  extremely  unwise  by  reason  of  the  motive 
that  accounts  for  the  crime,  to  apply  to  an  offender,  who 
is  a  professional  and  at  bottom  an  evil-doer,  a  discipline 
arranged  for  accidental  offenders  who  stand  in  no  need  of 
reform.  It  would  be  a  serious  error  to  make  capital  of  this 
sentiment  of  generosity  as  though  it  were  a  part  of  the  ha- 
bitual nature  of  the  individual  and  to  treat  him  as  one  un- 
acquainted with  any  criminal  impulse. 

Conversely,  one  may  suppose  a  respectable  man  by  chance 
yielding  to  a  low  and  vicious  impulse;  in  this  spirit,  the 
Swiss  draft  deliberately  places  greed  among  the  grosser 
impulses  that  aggravate  punishment.  Consider  once  more 
the  case  of  the  cashier  who  after  a  long  career  of  honesty  is 
led  into  a  breach  of  confidence  under  the  pressure  of  cir- 
cumstances which  have  called  forth  a  feeling  of  momentary 
but  irresistible  greed;  we  there  decide  it  proper,  if  this  im- 
pulse is  a  vicious  one,  to  increase  the  punishment  and  im- 
pose the  maximum  sentence.  But  if  the  judge  is  convinced 
that  he  is  dealing  with  a  man  momentarily  led  astray,  in- 
trinsically honest,  would  it  be  just  to  impose  upon  him  a 
punishment  designed  for  perverts,  and  suitable  only  to  the 
worst  types?  Punishment  of  that  kind  tends  to  lower  and 
debase  morals  rather  than  to  maintain  them. 

It  thus  appears  that  the  motive  in  the  second  sense  of 
the  word  may  well  serve  as  the  criterion  for  the  degree  of 


§80]  JUDICIAL  INDIVIDUALIZATION  249 

punishment,  and  yet  remain  inadequate  to  determine  its 
nature  and  discipline.1  It  takes  into  account  a  momentary 
impulse  and  gives  evidence  only  of  the  state  of  mind  at  the 
moment  of  the  crime,  and  this  momentary,  transitory,  and 
quite  artificial  aspect  of  the  man  is  not  sufficient  as  evidence 
of  his  true  and  general  character.  The  feeling  which  he 
shows  at  the  moment  of  the  crime  may  be  an  exceptional 
condition,  and  in  assigning  his  treatment  according  to  the 
indications  of  this  momentary  condition  there  is  danger  of 
a  radical  mistake. 

One  may  even  go  further.  Very  often,  indeed,  it  would 
be  wholly  false  to  judge  the  morality  of  an  act  according 
to  the  sentiment  that  the  purpose  sought  calls  forth,  with- 
out taking  account  of  the  latter.  It  has  been  seen  that  the 
purpose  sought  leads  to  crime  only  if  the  desire  for  it  is 
supported  by  a  criminal  trend  strong  enough  to  induce  the 
crime.  This  pressure  must  be  such  as  to  replace,  at  least 
momentarily,  the  man's  sense  of  honesty,  which  until  then 
was  his  true  nature,  by  a  sense  of  dishonesty.  This  is  per- 
fectly correct;  but  what  is  often  quite  false  is  to  appraise 
the  deed  solely  according  to  this  dishonest  impulse,  to  the 
neglect  of  the  external  pressure  and  the  purpose  that  gave 
rise  to  the  crime.  For  that,  one  must  return  once  more  to 
the  example  of  the  faithless  cashier  who  stole  to  cover  his 
obligations.  Evidently  there  was  a  moment  when  the  feel- 
ing of  honesty  was  replaced  by  its  opposite,  by  the  decision 
to  use  fraudulent  means,  the  willingness  to  become  an  in- 
strument of  fraud.  But  shall  one  say  that  this  feeling,  which 
in  itself  is  low  and  perverse,  should  determine  his  character 
and  his  moral  status  in  regard  to  the  act  committed?  To 
use  the  terms  of  the  Swiss  draft,  shall  one  say  that  this  man 
stole  because  of  greed?  That  would  seem  to  be  quite  im- 
1  See  Kraus,  cited  above,  p.  481. 


250         INDIVIDUALIZATION  OF  PUNISHMENT        [§80 

possible,  because  what  here  prevailed  was  the  more  remote 
purpose;  and  without  this  necessity  to  avoid  ruin  at  what- 
ever cost,  the  fraudulent  impulse  would  never  have  entered 
into  the  mind  of  the  unfortunate  miscreant.  It  would  be 
otherwise  only  if  the  feeling  in  favor  of  fraud  and  dishonesty 
had  existed  before  the  development  of  the  situation  which 
gave  it  the  occasion  to  appear  in  a  specific  form. 

Indeed,  even  when  the  case  is  one  that  indicates  a  crim- 
inal act  —  and  independently  of  the  question  of  determining 
the  penal  treatment  —  the  dominant  impulse  of  the  crime 
is  to  be  considered  only  if  it  were  present  in  the  criminal 
in  a  latent  form  previous  to  the  crime;  and  if,  furthermore, 
it  came  to  be  the  dominant  cause  of  the  crime,  while  the 
purpose  sought  was  only  its  occasion.  We  must  accordingly 
return  to  the  terms  of  the  proposition  that  served  as  our 
former  formula,  if  we  wish  to  find  a  motive  that  may  be  con- 
sidered as  a  criminal  impulse,  as  the  dominant  motive  of 
the  criminality  of  the  act,  which  in  turn  may  serve  to  char- 
acterize it  in  terms  of  crime  and  to  assign  it  its  place  in  the 
scale  of  subjective  criminality. 

The  final  purpose,  we  say,  determines  the  criminal  im- 
pulse; and  this  impulse,  in  turn,  determines  the  crime.  Yet 
very  commonly  the  reverse  is  true.  It  is  the  perverse  im- 
pulse that  determines  the  end  to  be  gained  and  incites  it; 
and  it  is  the  end  that  becomes  the  immediate  occasion  of  the 
crime.  Thus  in  case  of  the  person  who  became  an  incendiary 
to  obtain  the  insurance,  it  is  not  his  necessity  to  get  this 
money  that  aroused  his  feeling  of  greed;  this  was  already 
present  and  urged  him  to  attempt  to  obtain  money  by  means 
of  a  crime.  The  same  is  true  for  the  majority  of  cases  of 
theft.  Even  in  cases  of  murder  involving  brutality  and 
cruelty  and  vengeance,  these  are  sentiments  that  existed 
antecedent  to  the  end  sought;  or  rather,  this  end  tended 


§  81]  JUDICIAL  INDIVIDUALIZATION  251 

to  satisfy  these  feelings.  But  these  feelings  may  be  said  to 
be  the  true  motive  of  the  crime  only  under  the  supposition 
that  the  feeling  of  wanton  lawlessness,  which  is  sympa- 
thetic to  crime,  has  given  rise  to  the  particular  plan  fol- 
lowed. This  is  no  longer  true  when  the  feeling  is  but  a 
reflex  emotion  that  arises  after  the  undertaking  has  begun 
and  is  incidental  to  the  purpose  sought.  In  order  that  the 
motive,  in  the  second  sense  of  the  word,  may  be  regarded 
as  the  determining  cause,  it  must  be  merged  with  the  end 
sought,  and  the  crime  must  have  no  other  object  than  to 
give  satisfaction  to  this  feeling  of  dishonesty,  of  perversity, 
or  of  cruel  and  savage  passion,  that  existed  before  the 
crime  —  at  least  in  a  latent  form  —  and  in  this  form  became 
part  of  the  real  nature  of  the  criminal's  personality. 

§  81.   A  Third  Interpretation  of  the  Motive;  the  Moral 

Status 

We  here  come  upon  a  third  conception  of  motive.  The 
motive  is  no  longer  the  psychological  factor  aroused  by  the 
end  to  be  gained  which  has  become  the  immediate  cause 
of  the  crime;  it  is  the  essential  quality  of  the  moral  char- 
acter, the  satisfaction  of  which  stands  as  the  final  purpose 
of  the  crime  to  be  committed.  Possibly  this  is  the  meaning 
of  the  Swiss  draft;  in  speaking  of  a  murder  incited  by 
cruelty  or  vengeance,  it  interprets  that  the  murder  was 
committed  to  satisfy  this  impulse  of  cruelty  and  desire  for 
vengeance. 

We  thus  reach  the  conclusion  that  the  motive  which 
penology  must  particularly  consider  is  that  embodied  hi 
the  psychological  factor  that  incited  the  crime  and  gave 
it  its  dominant  character.  It  is  the  motive  thus  specified 
that  nearly  always  serves  to  indicate  the  objective  crim- 
inality of  the  act.  It  supplies  the  judge  with  one  of  the 


252         INDIVTOUALIZATION  OF  PUNISHMENT        [§  81 

surest  criteria  of  judgment  in  regard  to  the  degree  of  pun- 
ishment, and  consequently  of  its  duration. 

In  a  theory  that  does  not  admit  individualization  based 
upon  responsibility  there  is  needed  an  individualization 
based  upon  the  subjective  criminality  of  the  action:  that  is, 
upon  the  criminal  act  taken  as  a  whole  with  all  its  psycho- 
logical causes  and  judged  as  a  unity  and  a  totality.  Punish- 
ment in  regard  to  its  duration  should  have  two  standards 
of  measure:  an  objective  and  legal  standard,  according  to 
the  social  gravity  of  the  crime  abstractly  considered,  and  a 
subjective  standard,  derived  from  the  criminality  embodied 
in  the  action,  which  in  turn  is  determined  for  the  most  part 
by  the  nature  of  the  emotion  or  the  moral  factor  which 
inspired  the  crime. 

The  value  of  the  motive  considered  as  a  criterion  of  the 
subjective  criminality  of  the  act  is  thus  established.  It 
may  be  added  that  even  in  the  third  sense  the  motive  is  not 
the  exclusive  factor  to  be  taken  into  consideration:  which, 
in  turn,  may  be  thus  made  clear.  One  may  suppose  a  mur- 
der incited  by  a  motive  that  is  not  a  perverse  impulse,  let 
us  say  a  feeling  of  righteous  indignation.  Brutality  does 
not  enter,  although  the  murder  may  have  been  committed 
under  conditions  that  indicate  a  decided  cruelty.  Here 
the  indignation  brought  forward  the  brutality,  not  alone 
such  brutality  as  every  intentional  homicide  implies  and 
which  may  be  assumed  if  one  is  capable  of  murder,  but  a 
peculiar  brutality,  quite  irrelevant  as  a  determining  cause 
and  foreign  to  the  execution  of  the  act,  but  evidenced  in 
the  refinement  of  the  suffering  inflicted.  Would  it  be  proper 
to  say,  in  terms  of  motive,  that  there  is  present  in  this  case 
but  a  weak  degree  of  subjective  criminality?  Is  it  proper 
to  speak  of  the  honorable  motives  that  the  Swiss  proposal 
admits?  In  short,  side  by  side  with  the  motive,  must  one 


§82]  JUDICIAL  INDIVIDUALIZATION  253 

not  take  account  of  the  means,  in  order  to  present  not  alone 
the  material  circumstances  of  the  deed  but  its  subjective 
criminality?  Surely,  the  most  honorable  murder  —  explain- 
ing this  combination  of  terms  by  the  interpretation  already 
given  to  it  —  if  vitriol  is  used  in  perpetrating  the  crime,  is 
proven  to  be  the  act  of  a  low  and  base  criminal. 

Thus  considered  the  motive  itself  remains  wholly  inade- 
quate to  determine  the  subjective  criminality  of  the  act. 
If  the  act  is  to  be  characterized  in  terms  of  its  prevailing 
sentiment,  account  must  be  taken  of  the  entire  complexity 
of  impulses  disclosed  by  it,  which  as  a  whole  constitutes  the 
moral  nature.  The  subjective  criminality  of  the  act  is  the 
act  considered  in  its  psychological  origin,  and  at  the  same 
time  it  is  an  expression  of  the  feelings  leading  to  its  execution. 
It  is  the  psychology  of  crime  and  of  the  particular  crime 
judged  by  its  causes  and  the  manner  of  its  execution.1 

§  82.   Individualization  and  Political  Crimes 

The  conclusion  thus  reached  brings  us  merely  to  the  de- 
termination of  the  scale  of  punishment.  In  the  present 
issue  this  is  but  the  secondary  aspect  of  criminology;  the 
main  and  serious  problem  is  to  determine  upon  what  basis 
to  differentiate  suitable  punishments  and  how  to  assign 
the  proper  punishment  to  each  case. 

To  accomplish  this  the  attractive  plan  of  affording  the 
judge  several  kinds  of  punishment  differing  in  their  char- 
acter and  discipline  has  been  proposed;  whatever  the  of- 
fense, the  judge  may  thus  have  available  two  different  kinds 
of  punishment  for  any  individual  case.  There  will  be  two 
scales  of  punishment;  and  according  to  the  character  of 
the  agent  the  judge  can  place  him  in  one  or  other  of  the  two 

1  See  Stooss,  "Das  Motiv  im  Entwurf  zu  einem  schweizerischen  Strafge- 
setzbuch"  (in  the  Revue  ptnale  suisse,  1896,  p.  167,  seq.). 


254         INDIVTOUALIZATION  OF  PUNISHMENT        [§  82 

groups.  This  has  been  designated  as  the  system  of  parallel 
punishments.1 

That  the  requirements  of  modern  individualization  lead 
directly  to  the  admission  of  a  system  of  parallel  punish- 
ments is  clear.  The  difficulty  lies  in  determining  the  basis 
upon  which  the  judge  shall  assign  one  or  the  other  type. 
Those  favorable  to  the  plan  have  found  no  other  basis  of 
distinction  than  that  of  the  motive.  The  motive,  as  above 
interpreted,  thus  sets  the  standard  for  the  term  of  punish- 
ment and  determines  as  well  its  character  and  discipline. 
This  conclusion  must  be  carefully  examined.  Let  us  inquire 
into  the  nature  of  the  doctrine  of  parallel  punishments. 

The  criminologists  who  originated  the  theory  started 
from  a  well-known  precedent:  the  recognition,  with  reference 
to  the  material  crime,  of  two  standards  of  punishment,  the 
one  applicable  to  political  crimes  and  the  other  to  crimes 
of  common  law.  The  suggestive  principle  thus  introduced 
is  capable  of  considerable  development.  The  social  gravity 
of  political  and  common-law  crimes  may  be  identical.  In- 
deed, objectively  the  political  crime  often  carries  graver 
consequences  than  the  common-law  crime;  for  the  latter 
carries  direct  injury  only  to  a  single  individual.  As  political 
crimes  disclose  a  different  type  of  impulses  it  has  been  held 
that  the  character  of  the  punishment  should  be  different. 
Dostoiewsky's  "House  of  the  Dead"  will  acquaint  one  with 
the  effect  of  promiscuous  association  of  different  kinds  of 
offenders.  Political  offenders,  those  guilty  of  military  in- 

1  The  main  contribution  to  this  question  is  the  learned  report  of  M. 
Gorgon  to  the  Societe  generate  des  Prisons:  "Les  peines  non  deshonorantes," 
in  the  Revue  penitentiaire,  1896,  p.  830,  seq.  See  also  a  symposium  upon  the 
question,  contributed  by  a  number  of  criminologists,  whose  opinions  are 
published  in  the  Revue  pfaitentiaire,  1896,  p.  1099,  seq.;  p.  1407,  seq.;  and 
Annee  1897,  p.  144,  seq.  See  also  the  thesis,  previously  cited,  of  M .  Rigaud, 
p.  49,  seq. 


§82]  JUDICIAL  INDIVIDUALIZATION  255 

subordination,  and  common  criminals  are  thrown  together 
in  the  same  prison.  This  abuse  is  the  best  possible  plea  in 
favor  of  parallel  punishments. 

In  differentiating  the  punishments  of  political  criminals 
it  was  the  criminal  and  not  the  crime  that  was  considered. 
It  was  deemed  unjust  to  subject  the  political  offender  to 
the  same  kinds  of  punishment  as  were  provided  for  ordinary 
criminals,  for  such  are  regarded  by  the  law  as  infamous. 
Political  punishments  are  intended  to  be  deterrent  and  by 
their  severity  and  length  to  discourage  plotters,  while  like- 
wise they  are  regarded  as  measures  of  public  welfare  to 
hold  agitators  in  check,  but  they  were  not  intended  to  be 
infamous.  The  terms  "infamous"  and  "non-infamous" 
refer  only  to  the  nature  of  the  discipline  and  the  attitude 
of  public  opinion.  They  do  not  necessarily  refer  to  the 
weaknesses  which  occasioned  the  punishment,  continue  even 
after  its  execution,  and  are  considered  as  true  derelictions, 
either  political  or  personal.  All  that  has  nothing  to  do  with 
the  notion  of  infamy.  It  is  directed  to  the  removal  of  a 
danger.  For  whether  or  not  a  punishment  is  infamous,  a 
man  who  has  been  sentenced  is  regarded  as  a  transgressor, 
as  lacking  in  certain  respects.  To  entrust  him  with  a  re- 
sponsible position  and  place  him  in  charge  of  the  moral 
education  of  others  would  be  a  public  danger;  and  the  same 
applies  to  the  restoration  of  his  political  rights  without 
further  evidence.  While  definitely  eliminating  the  idea  of 
disgrace  we  do  not  necessarily  imply  that  all  minor  disabil- 
ities should  be  cancelled,  and  hi  proof  thereof  it  is  the  case 
that  political  punishments,  while  not  regarded  as  infamous, 
involve  minor  disabilities.1  These  appear  in  the  conditional 
sentence,  which  is  especially  intended  to  avoid  every  im- 

1  For  "infamy,"  in  Anglo-American  law,  see  Professor  Henry  SchqfieUTa 
note  in  the  Illinois  Law  Review,  Vol.  V,  1911.  —  ED. 


256         INDIVIDUALIZATION  OF  PUNISHMENT       [§83 

plication  of  disgrace,  yet  which  deprives  the  man  under 
sentence,  at  least  during  his  period  of  probation,  of  the 
exercise  of  his  political  rights.  This  distinction  is  quite 
definite. 

§  83.  ludividualization  in  the  Italian  Penal  Code 

We  come  now  to  the  statement  of  the  principle.  But 
are  the  political  criminals  the  only  offenders  who  are  likely 
to  arouse  interest?  Common-law  criminals  do  not  all  inspire 
the  same  aversion;  there  are  some  whose  crime  does  not 
disclose  any  previous  perversity.  The  Swiss  draft  assumes 
the  existence  of  crimes  committed  for  "honorable"  motives. 
Obviously,  among  so-called  crimes  of  passion,  there  are 
some  that  do  not  imply  the  perversity  of  the  agent.  Cer- 
tain cases  of  homicide,  from  the  ethical  standard,  approx- 
imate closely  to  cases  of  legitimate  self-defense.  Honor 
must  be  defended  as  well  as  life.  The  court  proceedings 
show  such  cases  as  that  of  a  father  defending  the  honor  of 
his  daughter.  Strictly  speaking,  justice  must  apply  the 
law  to  such  cases,  but  is  it  proper  to  regard  persons  thus 
involved  as  on  a  level  with  common  murderers  and  subject 
them  to  the  same  punishment,  not  merely  in  length  of  term 
but  in  discipline?  This  is  opposed  to  every  sense  of  justice. 

One  of  the  first  attempts  thus  to  establish  distinctions 
among  offenders  with  reference  to  the  application  of  pun- 
ishment was  made  in  the  preparation  of  the  Italian  penal 
code.  This  was  one  of  the  most  fruitful  innovations  ac- 
cepted and  developed  by  the  penal  code  of  1889.  This 
indebtedness  should  be  clearly  acknowledged.1  One  of  the 
numerous  proposals  and  drafts  advanced  two  scales  of  pun- 
ishment by  imprisonment.  The  one  entailed  a  discipline 

1  See  the  interesting  and  detailed  study  of  Ugo  Conti  (Supplemento  alia 
Rivista  perude,  vol.  V,  fasc.  3-4) :  "  I  moventi  a  delinquere  e  il  Codice 
penale  italiano." 


§83]  JUDICIAL  INDIVIDUALIZATION  257 

far  more  rigorous  and  of  a  different  order  from  that  pre- 
scribed for  the  other,  but  instead  of  deciding  the  punishment, 
as  in  France,  wholly  according  to  the  objective  gravity  of 
the  offense,  it  was  the  purpose  to  apply  it  in  accord  with 
the  subjective  criminality  of  which  the  criminal  gave  evi- 
dence. It  was  thus  that  deportation  and  detention  were 
reserved  for  political  transgressors  and  for  so-called  crimes 
of  passion,  —  /  reati  politici  e  d'impeto. 1  This  occurs  in 
the  draft  of  1866.  This  draft  met  the  fate  of  many  legis- 
lative constructions;  it  was  the  subject  of  many  changes  and 
was  replaced  by  other  drafts.  The  principle  of  parallel 
punishments  survived  these  parliamentary  vicissitudes. 

In  the  draft  of  Mancini  it  assumed  an  interesting  form. 
This  permitted  the  judge  to  take  account  of  motives  and 
to  substitute  one  punishment  for  another.  Such  substi- 
tution was  made,  not  as  in  France,  by  reason  of  extenuating 
circumstances  which  would  warrant  only  a  change  in  sever- 
ity of  punishment,  but  it  permitted  the  substitution  of  a 
totally  different  type  of  discipline,  even  a  discipline  of  an 
entirely  different  nature  and  character  from  the  punish- 
ments prescribed  by  the  law.  It  is  true  that  in  France, 
according  to  our  system  of  extenuating  circumstances,  one 
discipline  may  be  substituted  for  another;  thus  penal  servi- 
tude may  be  substituted  for  hard  labor,  or  hard  labor  for 
corrective  imprisonment,  but  in  the  operation  of  this  sub- 
stitution the  law  considers  only  the  presumptive  severity 
of  the  discipline.  It  regards  penal  servitude  as  more  rigorous 
than  hard  labor,  and  in  cases  of  extenuating  circumstances 
it  is  authorized  to  substitute  one  discipline  for  another. 
This  is  really  a  mistake,  and  those  who  have  to  undergo  the 
punishments  often  think  differently.  They  prefer  the  work 
out-of-doors  in  a  colony,  in  a  new  environment,  where  the 
1  See  Conti,  cited  above  (special  impression),  pp.  10-11. 


258         INDIVIDUALIZATION  OF  PUNISHMENT       [§83 

echoes  of  the  normal  life  they  have  led  and  others  are  leading 
does  not  reach  them,  to  the  prison  work-rooms  which  they 
never  leave.  It  should  be  added  that  the  penal  code  in  pre- 
scribing penal  servitude  and  in  determining  the  relative 
scale  of  punishments,  considered  only  the  old-type  convict 
prisons;  indeed,  the  discipline  in  these  was  naturally 
different  in  severity  from  that  obtaining  in  our  jails.  The 
introduction  of  deportation  in  1854  changed  this,  —  so  much 
so,  that,  in  spite  of  the  edicts  of  1891  and  others  that  have 
attempted  to  re-establish  the  legal  proportion,  the  order 
of  preference  is  now  inverted.  Those  concerned  once  more 
prefer  penal  servitude  to  hard  labor.  This  indicates  the 
spirit  in  which  these  distinctions  of  discipline  were  estab- 
lished. They  were  not  designed  to  differentiate  criminals 
in  natural  groups  but  to  punish  crimes  according  to  their 
gravity.  It  may  be  said  that  penal  servitude,  hard  labor, 
and  even  reformatory  imprisonment  were  designed  for  per- 
sons of  the  same  type.  It  is  a  fact  that  the  more  deserv- 
ing characters  are  found  among  those  deported  and  among 
convicts,  rather  than  among  the  ordinary  prisoners.  When 
the  law,  by  reason  of  extenuating  circumstances,  permitted 
a  change  of  discipline,  it  was  done  solely  to  make  the  pun- 
ishment less  severe  because  it  considered  the  crime  as  less 
serious.  It  was  not  done  to  afford  the  convict  a  discipline 
better  adapted  and  more  appropriate  as  a  means  of  restor- 
ing him  more  certainly  to  a  moral  plane,  or  as  an  additional 
guarantee  against  the  contamination  to  which  he  was  ex- 
posed. Indeed,  the  contrary  was  more  nearly  true. 

The  several  Italian  proposals  referred  to  have  a  different 
trend.  The  purpose  of  permitting  the  judge  to  substitute 
one  punishment  for  another  was  not  only  to  lessen  the  rigor 
of  the  discipline  but  to  give  it  a  different  direction  and  char- 
acter. The  substituted  punishment  was  not  merely  lighter 


§83]  JUDICIAL  ENDIVIDUALIZATION  259 

but  was  designed  for  those  who  were  not  perverts  and  were 
to  be  punished  without,  however,  involving  their  social 
degradation,  without  dishonoring  them  in  the  eyes  of  their 
fellow-citizens.  Most  of  all  were  such  offenders  to  be  sepa- 
rated from  congenital  criminals.  Without  following  the 
several  changes  which  the  Italian  draft  underwent,  let  us 
briefly  review  the  final  form  of  the  provision. 

The  system  adopted  was  composite;  and  the  offenses  were 
arranged  in  three  groups.  For  some  the  only  punishment 
set  by  the  law  was  hard  labor,  a  common-law  punishment; 
for  others  the  law  provided  only  detention,  a  special  punish- 
ment; and,  thirdly,  the  law  permitted  the  choice  between 
the  two.  Thus  in  the  Italian  penal  code  the  differentiating 
principle  adopts,  side  by  side,  two  systems,  the  one  applied 
by  the  law  and  the  other  applied  by  the  judge.  For  those 
offenses  for  which  the  punishment  is  unalterably  fixed  by 
the  law,  the  law  retains  the  choice,  and  applies  one  or  other 
of  the  parallel  punishments  according  to  the  character  of 
the  offense.  On  the  other  hand,  for  those  offenses  for  which 
the  choice  between  the  two  punishments  is  left  to  the  judge, 
it  is  the  judge  who  applies  one  or  the  other,  according  to  the 
merit  of  the  individual.  The  system  is  not  fully  developed; 
and  the  same  may  be  said  of  the  parallel  punishments  of 
the  German  penal  code.  According  to  Art.  20,  in  certain 
cases,  as  prescribed  by  the  law,  the  judge  has  at  his  disposal 
two  kinds  of  punishment  by  imprisonment.  To  justify  the 
application  of  the  more  severe,  the  details  of  the  crime  must 
be  peculiarly  abhorrent.  But  in  fact,  since  the  law  pre- 
scribes and  determines  the  applications  of  these  parallel 
punishments,  it  admits  them  only  in  cases  not  very  different 
from  political  crimes  and  in  certain  offenses  of  state  officials.1 

As  a  result  of  the  able  report  of  M.  Garden  the  question 
1  See  Olshausen,  "Kommentar  zum  Strafgesetzbuch,"  I,  p.  97. 


260         INDIVTOUALIZATION  OF  PUNISHMENT        [§84 

has  been  taken  up  anew  and  thoroughly  studied.  It  was 
presented  before  the  Societ6  generale  des  Prisons,  and  was 
followed  by  a  general  discussion  by  several  men  of  authority. 
Expert  opinion  is  thus  available;1  indeed  this  admirable  and 
profitable  method  of  securing  scientific  information  should 
be  more  extensively  adopted.  . 

§  84.   Principles  underlying  Individualization;   Uniform 
Punishments 

The  field  for  such  discussions  was  prepared  by  the  ideas 
advanced  at  the  Congress  at  Stockholm  in  behalf  of  a  uni- 
form type  of  punishment.  This  view  has  since  then  made 
considerable  progress.  Recent  drafts  and  codes  tend  in 
this  direction,  and  the  French  revision,  in  its  approximate 
adoption  of  the  principle,  presents  one  of  its  most  successful 
innovations.  This  improvement  is  due  to  M.  Leveille.  It 
was  recognized  that  the  so-called  differences  of  discipline 
were  little  more  than  varieties  of  torture  (using  the  word 
hi  no  harsh  sense)  and  were  of  little  avail.  It  is  a  survival 
(and  in  so  far  justifies  the  use  of  the  word  "  torture  ")  of  the 
fertility  of  such  devices  in  our  ancient  criminal  practice. 
To  apportion  the  suffering  to  the  evil  done  was  the  tradi- 
tional form  of  the  system  of  penalty;  and  in  principle  this 
relation  has  persisted.  Those  who  still  hold  to  the  concep- 
tion of  penalty  have  rejected  the  crude  conception  of  injury 
for  injury,  particularly  as  circumstances  do  not  permit  any 
real  equivalence  and  merely  serve  to  bring  about  the  striking 
inequalities  of  punishment.  Penalty  implies  responsibility 
and  the  evidence  of  moral  guilt;  it  implies  as  well  the  possi- 
bility of  a  moral  effect,  a  moral  action  of  the  punishment, 
and  this  is  confused  with  expiation;  it  effects  a  regeneration 
through  suffering.  Unquestionably  suffering  is  experienced, 

1  See  above,  p.  254,  note. 


§84]  JUDICIAL  INDIVIDUALIZATION  261 

but  the  hope  may  be  expressed  that  for  some,  if  not  for  all, 
suffering  will  be  resignedly  accepted.  Such  is  the  implica- 
tion of  the  word  "pemdty,"  —  the  end  in  view  in  expiation; 
but  the  conception  of  a  fictitious  proportion  between  the 
evil  done  and  the  moral  injury  realized  is  acceptable  only 
as  a  religious  doctrine  of  retribution,  according  to  which 
the  destiny  of  the  human  soul  is  regarded  as  predetermined, 
and  past  sins  must  be  wiped  out.  But  when  the  future  is 
at  stake,  the  past  is  negligible  in  comparison  to  the  pro- 
tection of  a  career  and  the  reformation  of  a  life.  The  notions 
of  penalty  and  expiation  are  of  value  only  in  stimulating 
activity  in  the  direction  of  moral  reform.  We  are  justified 
in  asking  how,  hi  times  of  religious  faith,  these  ideas  of  re- 
tributive justice  were  reconciled  with  the  Christian  con- 
ception, which  is  devoted  to  the  saving  of  souls  so  long  as 
life  lasts,  and  regards  past  sins  and  penances  merely  as  suc- 
cessive stations  in  the  gradual  ascent  of  the  moral  life. 
Under  our  present  views  such  conceptions  must  be  looked 
upon  as  survivals  of  the  old  conception  of  the  law  of  re- 
taliation —  an  eye  for  an  eye,  a  tooth  for  a  tooth.  Morally 
this  does  not  appeal  to  us,  and  practically  it  is  becoming 
less  and  less  realizable.  The  difficulty  appears  in  the  dis- 
tinction between  reformatory  imprisonment  and  hard  labor, 
which  for  the  most  part  is  vague  and  confused.  Unques- 
tionably a  difference  hi  punishment  should  be  retained 
corresponding  to  the  difference  hi  crime;  but  this  should 
be  expressed  in  the  term  of  sentence,  and  therein  will  the 
principle  of  proportionality  be  maintained  so  long  as  we  hold 
to  an  objective  scale  of  offenses.  There  will  be  no  danger 
of  the  prevalent  differences  of  judgment  of  court  and  pris- 
oner with  reference  to  the  severity  of  penal  servitude.  There 
will  be  an  approach  towards  a  uniform  type  of  punishment, 
applicable  to  all  criminals  through  a  reformatory  discipline 


262         INDIVIDUALIZATION  OF  PUNISHMENT       [§  85 

arranged  in  progressive  stages.  England  has  for  some  time  af- 
forded an  example  of  such  a  system.  The  only  distinction  that 
remains  is  that  between  punishments  that  may  be  adapted  to 
such  a  discipline  and  those  that  cannot;  and  this  corresponds 
to  the  distinction  between  long-term  and  short-term  punish- 
ments. These  conclusions  are  now  generally  accepted. 

If  there  is  to  be  but  a  single  type  of  punishment  with  an 
invariable  discipline,  it  becomes  illogical  to  put  all  kinds 
of  offenders,  as  the  expression  goes,  in  the  same  boat.  Such 
lack  of  discrimination  runs  counter  to  current  opinion,  well 
worthy  of  respect,  which  itself  does  not  favor  any  extreme 
variety  of  disciplines.  If  the  punishment  is  not  to  vary 
according  to  the  external  character  of  the  crime,  then  pun- 
ishment must  be  classified  upon  some  other  basis,  which 
must  be  the  consideration  of  the  individual,  —  a  subjective 
classification  of  punishments  replacing  the  prevailing  ob- 
jective classification.  In  this  way  the  system  of  uniform 
punishments  leads  insensibly  to  uniformity  in  each  group 
of  individualized  punishments. 

These  steps  in  the  development  should  be  carefully  noted; 
the  system  of  parallel  punishments  forms  one  transition, 
and  that  of  individualized  punishments  another.  As  ap- 
peared above,  the  difficult  point  in  the  combination  of  par- 
allel punishments  with  the  uniform  type  of  punishment  is  to 
determine  the  criterion  of  application  of  the  different  parallel 
punishments;  the  punishment  is  uniform  in  terms  of  the  objec- 
tivity of  the  crime,  but  variable  according  to  its  subjectivity. 
On  what  basis  shall  this  distinction  be  established? 

§  85.  Legal  Individnalization  for  Special  Offenses  or 
Circumstances 

There  are  but  two  systems  possible,  as  was  seen  hi 
the  case  of  the  Italian  penal  code,  —  application  by  law  or 


§  85]  JUDICIAL  INDIVIDUALIZATION  263 

application  by  the  judge.  The  former  is  proposed  by  the 
more  hesitant  innovators.  It  consists  merely  in  separating, 
in  the  law,  certain  crimes  or  misdemeanors  of  a  less  in- 
famous character,  and  applying  to  them  the  one  of  the 
two  types  of  punishment  by  imprisonment,  which  is  not 
considered  infamous.  Duelling  is  to  be  treated  in  this 
way,  and  the  same  obviously  applies  to  offenses  of  negli- 
gence and  infractions.  There  should  likewise  be  placed 
in  this  privileged  group  the  several  offenses  of  intermediate 
status  between  deliberate  offenses  and  those  incurred  through 
negligence,  in  which  the  intention  was  not  directed  to  the 
result  that  ensued  while  however  considering  it  as  a  possible 
outcome.  Such  would  be  the  case  of  the  hunter  who  fires 
while  aware  that  there  are  passers-by  within  range.  He 
considered  the  possibility  of  an  accident,  but  this  was  pres- 
ent to  his  mind  as  a  most  unlikely  chance.  He  fired  and 
an  accident  occurred.1  This  is  more  than  an  offense  of  bad 
judgment.  It  is  an  offense  of  intent  in  the  sense  that  the 
intent  in  its  possibilities  was  in  the  direction  of  a  possible 
murder.  It  is  thus  a  contingent  offense.  It  should  be  pun- 
ished more  severely  than  a  simple  offense  of  negligence  but 
differently  from  an  ordinary  intentional  offense  that  implies 
a  true  criminal  intent.  In  this  case  a  special  punishment 
and  not  the  common-law  punishment  should  apply.2 

In  other  words  there  will  merely  be  extended  to  certain 

1  There  may  be  added  the  case  of  the  station-master  who  gives  the  signal 
for  the  departure  of  a  train,  although  the  track  is  not  clear,  and  foresees 
the  possibility  of  an  accident,  although  there  is  but  one  chance  in  ten  in 
favor  of  it.  Having  considered  the  contingency,  it  becomes  a  contingent 
offense.  There  is  also  the  case  of  the  physician,  who  in  his  scientific  enthusi- 
asm in  attempting  a  new  treatment,  inoculates  a  hospital  patient  with  the 
microbe  of  a  disease  that  is  nearly  always  fatal.  He  foresees  very  clearly 
that  the  patient  may  die.  This  involves  more  than  bad  judgment;  there  is 
an  intent  and  a  contingent  crime. 

1  On  this  theory  of  contingent  liability  see  above,  p.  221,  note  1. 


264        INDIVIDUALIZATION  OF  PUNISHMENT        [§  85 

common-law  offenses  the  provisions  now  obtaining  for 
political  offenses.  The  law  will  thus  regard  certain  common- 
law  offenses,  that  in  themselves  and  objectively  do  not  im- 
ply a  true  subjective  criminality,  as  similar  in  status,  and 
in  the  appropriate  punishments  to  be  assigned  them,  to 
political  offenses. 

But  such  individualization  by  law  is  quite  inadequate. 
A  further  step  must  be  taken  by  allowing  the  law  to  provide 
a  special  punishment  for  the  offenses  just  indicated;  but  in 
addition  a  similar  provision  must  be  made  for  all  other 
offenses  by  affording  the  judge  the  choice  between  the  two 
punishments  according  to  the  moral  nature  of  the  offense. 
This  will  be  a  system  of  judicial  application,  but  it  in  turn 
may  be  understood  hi  two  ways,  with  or  without  legal  pre- 
scription. The  law  may  leave  entire  freedom  to  the  judge, 
neither  guiding  nor  prescribing  his  choice.  The  judge  may 
thus  make  his  own  criterion  of  application,  and  in  this 
case  the  criterion  may  be  the  consideration  of  the  individual 
in  his  entire  personality,  in  place  of  the  individual  considered 
solely  in  relation  to  the  deed  committed.  But  this  excellent 
plan  is  not  what  is  generally  proposed.  It  is  the  intention  to 
give  the  judge,  whatever  may  be  the  crime  or  misdemeanor, 
a  choice  between  two  parallel  punishments;  but  the  law 
shall  state  the  basis  of  choice  to  be  employed.  The  law  is 
thus  to  determine  the  criterion  which  is  to  serve  as  the 
indication  to  the  judge  to  apply  one  or  the  other  of  two 
punishments;  and  this  criterion  will  be  precisely  that  of 
which  we  have  spoken  at  some  length,  —  the  motive.  The 
motive  will  be  interpreted  in  the  sense  set  forth  in  detail, 
as  the  emotional  or  moral  factor  which  has  incited  either 
the  end  for  which  the  crime  was  committed  or  the  crime 
itself  as  a  means  of  attaining  the  end.  The  psychological 
factor  plays  the  determining  part  in  the  crime. 


§  85]  JUDICIAL  INDIVIDUALIZATION  265 

This  amounts  to  affirming  that  the  nature  and  the  dis- 
cipline of  the  punishment  should  depend  upon  the  motive, 
that  is,  upon  the  moral  attitude  revealed  by  the  crime,  —  or, 
rather,  that  which  is  revealed  as  the  active  force  and  in- 
centive of  the  crime.  There  will  be  different  punishments 
for  those  whose  crime  has  been  incited  by  low  and  perverse 
sentiments  and  for  those  whose  crime  was  incited  by  senti- 
ments that  in  themselves  are  not  dishonorable.  From  this 
starting  point  the  advocates  of  parallel  punishments  propose 
to  classify  punishments  in  two  groups:  the  one  correspond- 
ing to  infamous  punishments,  like  hard  labor  in  the  Italian 
penal  code;  and  the  other  corresponding  to  punishments 
that  are  not  infamous,  like  detention  as  it  is  set  forth  in  the 
same  code.  That  is  the  whole  of  the  system.  It  is  clearly 
a  step  in  advance.  It  evidences  the  growing  movement 
towards  a  subjective  penal  law,  that  is,  towards  a  penal  law 
that  is  more  humane  and  more  considerate  of  the  individ- 
ual. The  eyes  of  Justice  have  too  long  been  bandaged  and 
prevented  from  seeing  the  position  of  her  scales;  and  this 
has  given  rise  to  many  an  injustice.  The  bandage  must  be 
removed.  Justice  must  be  given  sight  and  insight  that  shall 
be  adequate  to  probe  the  human  conscience,  not  to  find 
the  proof  of  freedom  of  action  —  for  this,  Justice  is  not 
equipped  —  but  to  sound  the  moral  depth  of  the  offender, 
a  service  to  be  readily  and  even  scientifically  performed. 
The  system  of  parallel  punishments  is  a  protest  against 
abstract  impersonal  justice,  which  was  the  ideal  of  a  for- 
mer generation,  but  which  we  reject  because  we  know  its 
results:  criminals  by  birth  who  scorn  it,  or  chance  offenders 
whom  it  brands  and  ruins.  The  bandage  on  the  eyes  of 
Justice  protects  the  perverts  and  degrades  the  chance  of- 
fender. The  former  welcome  and  find  support  in  it;  the  latter 
find  in  it  their  despair.  We  demand  a  Justice  that  sees 


266         INDIVIDUALIZATION  OF  PUNISHMENT       [§86 

clearly,  that  treats  perverts  as  perverts,  and  the  wayward 
as  wayward  —  as  redeemable   members  of  society. 

§86.   The  System  of  Parallel  Punishments;    Punishment  and 
Social  Dishonor 

The  system  of  parallel  punishments  is  a  first  step  in  this 
direction,  but  is,  as  yet,  inadequate.  From  two  points  of 
view  it  remains  too  superficial:  as  a  system  of  punishments, 
from  the  punitive  point  of  view;  and  as  a  criterion  of  ap- 
plication, from  the  psychological  point  of  view.  So  far  as 
concerns  the  discipline  but  two  things  seem  to  have  been 
considered:  to  make  punishment  less  infamous,  and  to  make 
it  less  severe  and  thereby  less  deterrent.  The  former  is 
valueless  and  the  latter  altogether  inadequate.  The  ques- 
tion of  the  infamous  character  of  punishment  should  never 
have  been  raised.  The  purpose  of  punishment  is  never  to 
destroy  honor  but  to  restore  it.  What  constitutes  infamy 
is  the  corruption  disclosed  by  the  crime  and  which  makes 
the  criminal  an  outcast.  Condemnation  disgraces  him  in 
that  it  reveals  officially  and  judicially  his  psychological 
criminality,  and  in  that  it  fixes  his  attitude  and  position 
with  reference  to  the  social  group.  But  the  feeling  of  honor 
is  one  of  the  impulses  least  amenable  to  reason  because  it 
is  of  purely  social  origin.  It  belongs  to  the  subconscious 
relations  of  the  individual  with  his  social  group.  It  is  not 
a  feeling  capable  of  conscious  and  reasoned  analysis.  It 
is  the  sense  of  being  a  member  of  a  group,  an  equal  amongst 
equals.  This  becomes  the  standard  of  social  normality. 
Crime  throws  a  man  out  of  relation  and  makes  him  abnor- 
mal; he  becomes  an  outcast  and  an  alien.  The  sense  of 
dishonor  presents  an  inner  and  an  outer  aspect,  and  it  is 
well  to  observe  —  in  opposition  to  the  common  opinion  — 
that  it  begins  from  within,  in  a  sense  of  abnormality  and 


§  86]  JUDICIAL  INDIVIDUALIZATION  267 

degradation  which  the  crime  has  brought  about.  Is  this 
feeling  shame  or  is  it  remorse?  It  cannot  be  remorse,  for 
this  is  an  elevated  moral  conception,  —  although  it  is  often 
misunderstood  as  though  it  were  a  sort  of  brooding  upon 
the  past,  while  rightly  it  should  be  a  source  of  energy  for 
future  regeneration.  It  more  nearly  approaches  shame, 
although  the  strong  consciousness  of  abnormality  may 
develop  into  the  consciousness  of  a  deeper  personality,  of 
a  more  serious  and  stronger  initiative.  The  transition  from 
one  group  to  the  other  is  accompanied  by  the  self-bestowed 
honors  of  war.  Criminals  have  the  courage  of  their  crime.1 
Let  us  hold  to  this  direct  influence  disclosed  by  a  psy- 
chological and  social  analysis,  namely,  the  consciousness 
of  social  loss  of  caste.  Though  strange,  it  is  true  that,  as 
outwardly  reflected,  such  loss  of  honor  is  slow  to  appear. 
The  social  estrangement  of  the  criminal  will  not  be  seriously 
reflected  by  the  treatment  of  his  associates  if  he  himself 
puts  up  a  bold  front  and  gives  no  suspicion  of  his  inner  dis- 
grace. One  knows  him  to  be  a  dishonest  man  but  continues 
to  pay  him  respect  and  consideration;  he  remains  a  part  of 
the  social  group;  he  is  not  ostracized  nor  excommunicated. 
Infamy  does  not  depend  upon  morality  but  upon  social 
equality.  So  long  as  the  dishonest  man  holds  his  own  and 
remains  within  the  group  of  his  equals,  one  ignores  what 
he  is.  Social  consciousness  and  social  unity  are  so  strongly 
embedded  in  our  nature,  that  no  one  individual  takes  it 
upon  himself  to  exercise  the  social  authority  and  excom- 
municate another.  In  order  to  render  infamy  effective  the 
social  organism,  here  expressed  in  the  judicial  power,  must 
pronounce  the  loss  of  caste.  Contrary  to  the  familiar  say- 
ing, "It  is  the  scaffold  and  not  the  crime  that  disgraces," 

1  On  this  subject,  and  from  an  analogous  point  of  view,  see  the  recent 
-volume  of  Sighele,  "Litterature  et  criminality." 


268         INDIVIDUALIZATION  OF  PUNISHMENT       [§  86 

it  is  really  society  that  disgraces.  Honor  and  esteem  should 
not  be  confused.  Esteem  is  conferred  by  one  individual 
upon  another;  honor  is  conferred  by  society  alone. 

Condemnation  by  means  of  a  legal  sentence  becomes  a 
social  excommunication,  and  as  such  it  dishonors.  But 
wherein  consists  the  infamy  of  the  punishment  that  fol- 
lows? The  dishonor  is  already  incurred,  and  honor  is  now 
to  be  restored.  Lost  ground  must  be  recovered  and  a  new 
opening  found  through  which  an  entrance  and  adjustment 
to  a  social  status  may  be  brought  about.  The  social  ban 
must  be  lifted;  the  convict  must  make  himself  socially  ac- 
ceptable, and  thereby  regain  his  sense  of  honor.  The  pur- 
pose of  punishment  is  to  facilitate  such  reinstatement  and 
to  restore  the  sense  of  social  equality. 

Punishment  should  not  be  designed  to  intensify  the  dis- 
honor inherent  in  condemnation:  and  that  for  two  practical 
reasons,  first,  because  it  would  intensify  the  depravity 
prevalent  among  criminals;  and  second,  because  it  would 
impede  the  social  reinstatement.  There  are  two  sources 
of  corruption:  the  hardships  of  the  environment,  which 
re-enforce  evil  impulses;  and  the  loss  of  the  sense  of  honor, 
or  rather  of  self-esteem.  Of  the  two,  the  more  serious  is 
certainly  the  second.  The  hardships  of  the  environment 
can  never  quite  destroy  the  moral  sense,  never  wholly  destroy 
regret  for  the  past  and  hope  for  the  future.  The  loss  of 
self-esteem  is  the  definite  abandonment  of  oneself  and  the 
acceptance  of  one's  downfall.  The  man  who  knows  and 
feels  himself  lost  is,  socially  speaking,  "done  for."  He  is 
beyond  the  pale,  fallen  to  the  level  of  those  whom  society 
has  dishonored  and  rejected.  He  is  degraded  in  his  own 
eyes  and  in  the  eyes  of  others.  Nothing  more  is  to  be  ex- 
pected of  him;  and  thus  the  disgrace  of  punishment  acts 
as  the  most  powerful  means  of  corruption.  The  serious. 


§86]  JUDICIAL  INDIVIDUALIZATION  269 

obstacle  to  social  reinstatement  is  obvious.  How  is  society 
to  accept  one  whom  it  has  already  rejected?  To  him  all 
doors  are  closed,  particularly  the  door  of  the  workshop. 
Refused  by  society,  the  only  world  that  is  open  to  him  is 
that  underworld  frequented  by  his  prison  chums. 

Such  is  the  effect  of  infamous  punishments.  Punishment, 
to  accomplish  its  end,  must  not  involve  the  loss  of  honor. 
It  must  aid  in  its  restoration.  Far  from  exerting  its  present 
influence,  punishment  must  be  made  to  support  self-esteem 
by  aiming  to  weaken  the  immoral  impulses  which  have  led 
to  its  loss,  and  by  replacing  these  with  tendencies  opposed 
thereto.  For  this  purpose  the  discipline  must  arouse  in 
those  affected  a  clear  appreciation  of  their  possibilities,  a 
new  conception  of  life,  in  which  energy  and  personal  initia- 
tive, the  habit  of  work  and  effort,  should  be  dominant.  The 
effect  of  the  discipline  should  be  to  make  a  man  feel  worthy 
of  the  social  life,  and  thus  restore  his  sense  of  honor.  For 
the  sense  of  honor,  like  that  of  dishonor,  must  be  worked 
upon  subjectively;  it  must  exist  within  the  man  before 
others  can  be  asked  to  recognize  and  sanction  it.  Punish- 
ment must  bring  about  a  spiritual  regeneration,  and  thus 
make  liberty  the  consecration  of  honor  regained,  the  be- 
ginning of  social  rehabilitation  which  the  test  of  life  con- 
firms. To  this  end  punishment  should  prepare  and  give 
assurance  of  social  reinstatement  and  never  impose  an  in- 
delible stigma.  In  this  respect  there  is  at  present  a  fair 
agreement.  There  is  a  growing  sentiment  in  favor  of 
abolishing  punishments  that  dishonor,1  and  of  discarding 
the  distinction  made  between  infamous  and  non-infamous 
punishments. 

1  It  has  been  indicated  above  that  this  is  not  necessarily  connected  with 
the  removal  of  the  disabilities  accessory  to  punishment.  See  above,  pp. 
255-256. 


270         INDIVIDUALIZATION  OF  PUNISHMENT       [§  87 

§  87.  The  Factors  entering  into  the  Classification  of 
Criminals 

The  disposition  of  the  severity  of  punishment  is  likewise 
unsatisfactory.  Obviously  punishment  should  be  severe; 
otherwise  it  would  not  be  a  penalty,  and  would  not  stimulate 
reflection  nor  regret.  It  must  work  upon  the  individual  to 
rebuild  him  spiritually.  Again,  if  the  prison  discipline  is 
not  severe  it  ceases  to  intimidate;  it  would  become  a  form  of 
hospitality  of  which,  apart  from  the  moral  effect,  advantage 
would  be  taken.  We  must  avoid  all  false  sentimentality; 
punishment  should  be  severe,  if  need  be,  very  severe,  and 
perhaps  it  should  be  imposed  according  to  the  nature  of 
the  criminal.  Yet  this  is  not  enough.  The  relative  severity 
of  discipline  is  inadequate  to  place  the  punishment  in  proper 
relation  to  the  corrective  education  and  moral  reform  of 
those  condemned.  It  is  the  mode  of  organizing  the  dis- 
cipline itself,  independently  of  the  question  of  severity, 
that  must  characterize  the  punishment  and  constitute  its- 
true  nature. 

It  has  for  some  time  been  recognized  that  there  should  be 
three  chief  groups  of  punishments:  (1)  punishments  organ- 
ized with  reference  to  a  prospect  of  a  social  reinstatement; 
(2)  punishments  applicable  to  incorrigibles,  where  there  is 
no  such  prospect;  (3)  punishments  for  those  morally  certain 
to  make  good.  For  the  last,  the  question  of  morality  does 
not  really  arise;  for  such  offenders  remain  honest  and  there 
is  no  occasion  to  reform  them  morally  or  spiritually,  or  to 
provide  a  new  environment.  For  them  punishment  has 
no  moral  or  educational  purpose  but  is  simply  a  penalty  of 
a  deterrent  nature.  Apart  from  these  two  latter  classes, 
there  are  punishments,  reformatory  punishments,  applicable 
to  offenders  who  stand  in  need  of  and  are  susceptible 


§87]  JUDICIAL  INDIVIDUALIZATION  271 

of  moral  reform.  Thus  the  three  following  classes:  punish- 
ments for  intimidation,  for  reform,  and  for  social  protection. 

How  shall  the  parallelism  of  punishments  based  upon 
the  relative  dishonor  or  severity  of  the  punishment  be  as- 
similated to  this  three-fold  classification?  The  fundamental 
basis  of  the  classification  should  be  the  mode  of  organizing 
the  discipline,  or,  better,  the  intrinsic  spirit  of  the  punitive 
treatment,  and  such  classification  should  lead  to  a  corre- 
sponding classification  of  criminals.  Psychologically  the 
question  becomes  the  determination  of  a  rational  classi- 
fication of  criminals  on  the  basis  of  parallel  punishments. 

In  the  theory  of  parallel  punishments  the  classification 
is  made  according  to  the  motive.  But  it  has  been  shown 
that  the  motive  is  nothing  else  than  the  psychological  factor 
dominant  in  the  crime.  It  is  the  decisive  cause  of  the  crime, 
either  in  that  it  provided  the  object  of  which  the  crime  was 
the  realization;  or  that  it  itself  was  the  issue  of  the  end  to 
be  obtained  and  thus  suggested  the  crime;  or  that  it  gave 
rise  to  the  moral  energy  needed  to  translate  the  thought 
into  deed.  But  the  motive  thus  understood  is  but  a  pe- 
culiar and  specialized  sentiment,  though  also  a  part  of  char- 
acter and  the  index  of  a  dominant  trait.  Nine  times  out 
of  ten  it  has  a  true  symptomatic  value,  but  not  necessarily 
so.  Rascals  may  on  occasion  act  on  generous  impulses  and 
commit  crimes  that  are  like  the  "crimes  of  respectable  men," — 
of  the  existence  of  which  juries  seem  to  be  convinced,  and 
which  the  Swiss  draft  does  not  hesitate  to  recognize  legally. 
On  the  other  hand  criminals  by  accident  may  have  com- 
mitted a  crime  under  the  impulse  of  base  sentiments,  which, 
if  alone  regarded,  would  suggest  a  hardened  and  perverted 
professional.  When  we  consider  the  motive  we  begin  to 
obtain  insight  into  the  depths  of  human  nature.  But 
our  considerations  are  still  superficial.  It  is  still  too 


272         ENDIVIDUALIZATION  OF  PUNISHMENT       [§87 

much  the  crime  and  not  enough  the  criminal  that  is 
uppermost. 

There  are  three  stages  in  the  psychological  analysis  of  pun- 
ishment, which  the  evolution  of  penal  law  discloses.  At  first 
the  material  fact  alone  was  considered;  so  long  as  the  crime 
was  the  same,  the  subjective  criminality  was  deemed  to  be 
the  same.  A  deeper  analysis  brought  forward  the  question 
of  responsibility.  By  using  the  criterion  of  accountability 
and  freedom,  the  attempt  was  made  to  measure  and  gauge 
the  moral  status  of  the  agent;  but  the  act  committed  was 
ever  uppermost,  and  the  decision  turned  upon  the  amount 
of  deliberate  intent  which  the  act  disclosed,  upon  the  re- 
sponsibility attaching  to  the  act  itself.  Whether  this 
responsibility  was  exercised  by  a  debased  criminal  or  by  a 
respectable  man  made  no  difference;  indeed  the  punishment 
imposed  was  heavy  for  the  respectable  man,  and  seemed 
light  to  the  hardened  criminal.  At  length  a  further  step 
was  taken.  Instead  of  undertaking  to  measure  or  estimate 
the  degree  of  intent  or  freedom,  which  ever  escape  quan- 
titative measurement,  the  quality  of  the  will  was  looked 
into.  Instead  of  a  quantitative,  a  qualitative  valuation 
was  attempted,  and  the  motive  thus  emerged,  —  that  is, 
the  relative  depravity  of  the  emotion  that  incited  the  re- 
solve and  gave  it  its  character. 

We  thus  reach  not  the  degree  of  intent  or  freedom  but 
the  degree  of  perversity  expressed  in  the  action.  This  may 
be  called  the  subjective  criminality  of  the  action  and  is  to 
be  substituted  for  responsibility.  It  is  a  decided  advance. 
We  are  no  longer  exposed  to  confusions  of  terms  such  as 
those  involved  in  the  theory  of  responsibility,  —  the  lesser 
punishments  being  assigned  to  the  worst  offenders.  The 
criminality  of  the  act  remains  in  direct  relation  with  the 
perversity  with  which  it  was  conceived  and  executed.  Even 


§87]  JUDICIAL  INDIVIDUALIZATION  273 

if  we  consider  only  the  criminality  of  the  act  itself,  the 
worst  offenders  have  slight  chance  to  escape  the  maximum 
degree  in  the  scale  of  subjective  criminality.  Moreover, 
quite  apart  from  the  personality  of  the  criminal,  it  is  a  large 
step  in  advance  to  assign  the  maximum  of  penalty  to  the 
maximum  of  perversity.  The  theory  of  responsibility  might 
lead  to  a  quite  opposite  result.  But  it  is  altogether  likely 
that  the  perversity  inherent  in  the  act  corresponds  to  the 
natural  perversity  of  the  individual.  If  the  case  is  one  of 
murder  incited  by  pure  cruelty  there  is  considerable  prob- 
ability that  the  agent  is  by  nature  passionate  and  cruel. 

However  there  are  more  or  less  exceptional  cases  in  which 
this  is  not  true;  and  if  the  law,  according  to  the  theory  of 
parallel  punishments,  must  necessarily  make  the  particular 
punishment  assigned  depend  upon  the  particular  motive 
involved,  the  judge  will  have  no  choice  and  will  be  obliged 
to  apply  the  punishment  attached  by  the  law  itself  to  a 
crime  committed  under  that  particular  motive.  This  is 
unfortunate;  even  in  such  a  case,  the  judge  should  not  have 
his  hands  tied. 

We  may  accept  the  theory  of  parallel  punishments  but 
on  the  condition  that  the  criterion  of  the  selection  of  pun- 
ishment must  not  necessarily  be  the  motive  of  the  crime. 
Without  a  further  analysis  the  motive  is  nothing  more  than 
a  part  of  the  circumstance  and  closely  related  to  the  act 
committed.  It  affects  the  penalty,  and  the  penalty  is  trans- 
lated into  the  duration  of  the  punishment.  So  far  as  the 
permanent  and  fundamental  character  is  concerned,  the 
motive  expresses  itself  only  indirectly  and  as  a  symptom. 
The  special  and  individual  adjustment  of  the  punishment 
must  be  made  according  to  the  entire  personality,  not  to 
the  fragment  thereof  revealed  in  the  crime.  Among  such 
motives  a  distinction  should  be  made  between  a  motive 


274         INDIVIDUALIZATION  OF  PUNISHMENT       [§88 

directly  aroused  by  the  end  to  be  obtained  and  an  impulse 
which  has  itself  called  forth  this  end.  In  the  latter  case 
the  motive  is  due  to  a  moral  attitude  that  is  antecedent 
not  alone  to  the  crime  but  to  the  details  and  circumstances 
that  explain  the  crime,  or  which  came  to  exist  under  pres- 
sure from  without.  With  the  motive  as  a  criterion  there 
will  always  be  this  ambiguity;  and  the  two  conflicting  points 
of  view  will  be  liable  to  confusion. 

Let  us  then  still  further  extend  the  theory,  and  speak  not 
of  parallel  punishments  to  be  applied  according  to  the  motive 
of  the  crime,  but  of  specialized  punishments  to  be  applied 
according  to  the  moral  temperament  of  the  criminal.1  We 
shall  now  see  how  such  a  system  is  to  be  constructed. 

• 

§  88.  A  Tentative  System  of  Individnalization ;  Static  and 
Dynamic  Criminality 

Having  thus  reached  the  heart  of  the  question  our  further 
task  is  to  supply  a  definite  constructive  system.2  An  early 
step  in  the  direction  of  the  newer  view  dates  from  the  Con- 
gress of  Stockholm,3  where  the  plea  for  the  uniform  type 
of  punishment  was  made.  Opposed  thereto  was  the  cher- 
ished notion  of  our  traditional  law,  that  punishments  must 
vary  in  discipline,  and  consequently  in  severity,  according 
to  the  nature  of  the  crime.  The  more  serious  crimes  de- 
mand the  more  serious  penalties,  in  length  as  well  as  in 
discipline.  Hence  the  large  variety  of  criminal  punishments 
in  which  the  penal  code  of  1810  abounds.  It  appears,  how- 
ever, that  the  opinion  of  criminals  does  not  always  agree 

1  On  these  measures  see  the  just  comments  of  M.  Alfred  Gautier  in  his 
comparative  study  of  the  revised  French  draft  and  the  Swiss  draft.     A. 
Gautier,  "Deux  projets,"  in  the  Revue  penale  suisse,  1894,  pp.  105-107. 

2  For  what  follows  see  L.  Riviere,  "De  1'individualisation  des  peines"  in 
the  Revue  penitentiaire,  1897,  p.  1043,  seq. 

8  See  the  account  of  the  International  Prison  Congress  at  Stockholm, 
Vol.  I,  p.  189,  seq. 


§88]  JUDICIAL  INDIVIDUALIZATION  275 

with  that  of  the  law  and  that  frequently  punishments  in- 
tended to  be  formidable  and  deterrent  are  in  fact  preferred. 
The  hardship  of  a  punishment  is  determined  less  by  the 
severity  of  the  discipline  than  by  the  previous  sensibility 
and  education  of  the  subject.  It  is  thus  quite  useless  to  set 
the  punishment  according  to  the  crime.  The  duration  of 
the  punishment  must  intimidate  and  stand  as  the  penalty 
of  the  crime,  and  since  it  is  the  nature  of  the  criminal  that 
determines  how  the  punishment  is  felt  and  regarded,  and 
since  this  also  conditions  the  psychological  effect,  it  is  ac- 
cording to  the  moral  nature  of  the  criminal  that  the  nature 
of  the  discipline  and  the  reformatory  status  of  the  punish- 
ment should  be  graded. 

This  then  is  our  conclusion:  the  penalty  aspect  of  pun- 
ishment remains.  Punishment  remains  a  penalty  because 
the  conception  of  responsibility  persists  and  because  satis- 
faction is  due  to  the  sentiment  of  popular  and  social  justice, 
which  insists  that  society  shall  pronounce  upon  and  reprove 
moral  evil  whenever  it  is  injurious  to  the  community.  Pun- 
ishment is  an  evidence  of  responsibility  because  responsi- 
bility alone  makes  salvation  possible.  It  is  not  sin  that 
degrades,  because  if  it  evidences  the  freedom  of  the  sinner 
in  sinning,  it  likewise  attests  his  freedom  to  restrain.  In 
any  other  theory  the  criminal  becomes  a  lost  being,  an  out- 
cast and  an  alien,  recalling  the  primitive  savage  described 
by  Lombroso.  Yet  though  possibly  more  degraded,  he 
shares  with  all  men  the  liability  to  sin;  it  is  but  a  matter 
of  degree.  As  a  free  agent,  responsible  for  his  actions,  he 
may  utilize  this  human  privilege  to  effect  his  moral  and 
social  reinstatement,  as  well  as  his  ruin.  Not  all  is  lost, 
and  reform  is  ever  possible.  The  conception  of  responsi- 
bility should  be  incorporated  with  that  of  punishment; 
without  it  the  criminal  is  a  creature  despised,  ostracized, 


276         INDIVTOUALIZATION  OF  PUNISHMENT        [§  88 

abnormal,  and  even  monstrous;  with  it  self-esteem  remains, 
or  at  least  may  be  regained.  The  possible  criminal,  feeling 
himself  free  in  his  actions,  is  conscious  of  his  power  to  act 
rightly  as  well  as  to  act  wrongly.  He  feels  his  community 
with  all  sinners,  for  no  one  is  without  some  measure  of  in- 
nate depravity,  and  he  feels  particularly  that  he  may  again 
become  the  equal  of  the  regenerate.  So  valuable  a  moral 
lever  should  not  be  interfered  with. 

But  penalty,  thus  justified  by  responsibility,  is  not  meas- 
ured thereby.  It  must  be  apportioned  to  the  subjective 
criminality  of  the  agent  and  made  to  reflect  not  a  quantita- 
tive but  a  qualitative  factor  of  the  will.  This  subjective 
criminality  of  the  agent  presents  two  aspects.  There  is  the 
latent  and  passive  criminality  in  the  static  condition,  so  to 
speak,  which  is  one  with  the  essence  of  the  character.  It 
expresses  itself  through  this  or  that  innate  bent,  or  through 
hereditary  or  acquired  vice.  It  appears  in  every  action 
and  every  tendency  of  the  individual,  as  well  as  in  such  actions 
as  are  not  in  any  sense  criminal.  It  represents  the  vicious 
aspect  of  the  personality.  The  law  does  not  punish  this, 
for  if  it  punished  persons  by  reason  of  their  character,  it 
would  be  necessary  to  imprison  them  before  they  perpetrated 
crimes. 

There  is  a  second  aspect  of  criminality.  Besides  the 
passive,  there  is  the  active  dynamic  criminality  considered 
as  a  psychic  factor,  which  on  occasion  sets  free  an  impulse, 
which  in  turn  breaks  out  into  action.  This  active  crim- 
inality is  often  but  the  expression  and  operation  of  the 
passive;  the  one  reveals  the  other.  Yet  it  is  not  always 
necessarily  so.  Every  personality  has  several  phases;  each 
one  of  us  harbors  several  conflicting  personalities.  St.  Paul's 
cry  of  despair  is  true  of  all.  At  any  given  moment  one  of 
these  several  personalities  becomes  dominant,  and  through 


§  88]  JUDICIAL  INDIVIDUALIZATION  277 

such  dominance  manifests  the  inherent  morality  or  per- 
versity of  the  individual  or  discloses  his  potential  latent 
criminality.  But  there  are  other  occasional  phases  of  our 
personality  which  may  come  to  the  front;  and  there  may 
arise  immoral  criminal  suggestions  which  are  quite  excep- 
tional and  accidental,  unconnected  with  our  past  and  with 
little  chance  of  a  return  in  the  future.  Such  active  crimin- 
ality does  not  necessarily  represent  the  passive  criminality  of 
our  moral  nature  and  should  not  be  identified  therewith. 

But  it  is  this  criminality  in  its  active  effective  state  that 
determines  the  act  for  which  the  law  holds  us  accountable. 
Socially  it  constitutes  the  moral  danger  of  which  we  give 
evidence,  which  the  law  recognizes,  and  for  which  it  holds 
us  accountable.  The  responsibility  that  law  and  common 
sense  ascribes  to  us  does  not  refer  to  the  free  will  of  the  act 
but  only  to  the  extent  and  intensity  of  the  subjective  crim- 
inality. If  the  will,  merging  with  the  character,  issues  in  a 
criminal  impulse,  then  for  such  issue  we  are  held  respon- 
sible. For  society,  the  criminality  thus  expressed  and  made 
manifest  constitutes  the  crime.  It  is  the  cause  of  the  dis- 
turbance and  produces  the  injury  for  which  we  are  held 
accountable. 

Such  active  criminality,  representing  the  subjective  crim- 
inality of  the  crime,  should  determine  the  penalty.  It  is  re- 
vealed in  the  motive  considered  as  the  psychological  factor 
from  which  flows  the  direct  impulse  of  the  crime,  and  it  is 
by  the  motive  that  the  term  of  punishment  should  be  regu- 
lated; for  the  term  of  sentence  reflects  the  phase  of  the  pen- 
alty proportional  thereto. 

But  when  we  come  to  determine  the  discipline  of  the 
punishment,  we  need  no  longer  consider  the  particular  and 
detailed  variety  of  criminality  inherent  in  the  act.  Char- 
acter must  determine  the  discipline.  The  nature  of  the 


278         INDIVIDUALIZATION  OF  PUNISHMENT        [§89 

punishment  should  be  determined  by  the  passive  criminality 
in  its  latent  and  static  condition. 

The  judge  must  thus  apply  two  points  of  view  and  two 
very  different  principles.  He  must  determine  the  length 
of  the  punishment  according  to  the  active  criminality  that 
characterizes  the  crime,  thus  considering  the  principle  of 
penalty;  and  he  must  determine  the  nature  of  the  punish- 
ment according  to  the  passive  criminality  of  the  agent, 
according  to  his  character,  thus  considering  the  principle 
of  the  underlying  purpose  and  of  the  individualization  of 
punishment.  The  degree  of  passive  criminality  may  quite 
often  be  determined  through  the  motives  and  the  subjective 
criminality  of  the  act,  but  this  does  not  necessarily  follow; 
and  here  the  judge  must  exercise  large  discretion.  In  some 
cases  the  two  forms  of  criminality  are  quite  certain  to  be 
contradictory,  as  in  the  case,  for  instance,  of  the  recidivist 
who  may  be  guilty  of  many  infractions  and  thus  reveals 
himself  incorrigible  and  unimpressionable,  yet  whose  latest 
offense  may  imply  but  the  minimum  degree  of  criminality. 

§  89.  The  Detailed  Classification  of  Criminals 

Such  are  the  principles  which  should  determine  the  ap- 
plication of  the  scale  of  punishment.  We  must  now  attempt 
a  classification  of  criminals  according  to  their  psychological 
nature,  and,  corresponding  thereto,  reach  an  adequate  classi- 
fication of  punishments. 

Leaving  the  consideration  of  the  term  of  punishment, 
which  depends  upon  judiciary  procedures  not  likely  to  differ 
markedly  from  current  practice,  let  us  briefly  survey  the 
nature  of  punishment  and  the  resulting  choice  of  the  penal 
discipline.1 

1  See  Wahlberg,  "Das  Princip  der  Individualisirung,"  principally  chapters 
i  and  ii;  and  "Kleinere  Schriften,"  passim,  particularly  I,  p.  136,  scq.;  II, 


§89]  JUDICIAL  INDIVIDUALIZATION  279 

This  choice  should  be  made  according  to  the  nature  of 
the  agent,  or  rather  according  to  such  criminal  impulses 
as  he  may  exhibit,  and  according  to  the  direction,  variety, 
and  detailed  nature  of  such  criminal  impulses.  The  object 
is  to  establish  classes  of  punishment  corresponding  to  the 
different  classes  of  criminals.  Here  there  is  a  serious  pri- 
mary difficulty  to  be  avoided,  namely,  not  to  lose  oneself 
in  minutiae  of  details  and  distinctions.  There  should  be 
no  attempt  to  establish  on  a  legal  basis  a  complete  classi- 
fication of  criminals  with  all  their  characteristic  types  and 
varieties.  This  was  the  error  of  the  anthropological  school. 
Thus  Ferri,  in  his  Criminal  Sociology,  has  pushed  the  dis- 
tinction of  types  too  far;  his  position  involves  a  mistake 
and  a  faulty  perspective,  or  rather,  an  error  in  the  selection 
of  the  point  of  view.  It  is  easy  to  multiply  varieties,  and 
indeed  there  will  be  a  great  many  of  them  if  one  is  bent  upon 
establishing  psychologically  detailed  differences  of  individ- 
ual temperaments,  and  if  these  in  turn  are  to  be  classified 
according  to  the  causes  influencing  the  origin  of  criminality, 
such  as  heredity,  environment,  degeneracy,  etc.  The  crim- 
inal would  thus  be  studied  much  as  the  botanist  studies 
plants,  classifying  and  subclassifying  them  as  soon  as  a  new 
variety  is  discovered;  or  as  the  zoologist  follows  a  similar 
plan  in  classifying  animal  species.  It  is  such  an  anthropo- 
logical point  of  view  that  the  sociological  school  assumes 
towards  criminality. 

p.  138,  seq.;  Ill,  p.  18,  seq.  p.  55,  aeq.  Also  his  excellent  essay  "Das  Mass 
und  der  mittlere  Mensch  im  Strafrecht"  (in  Griinhufs  Zeitschrift  fiir  das 
privat  und  qffenttiche  Recht  der  Gegenwart,  1878,  p.  465);  Colajanni,  "La 
sociologia  criminale,"  passim;  Ferri,  "Sociologie  criminelle,"  p.  80,  seq.\ 
Garofalo,  "Criminologie,"  passim;  Tarde,  "fitudes  penales  et  sociales," 
p.  115,  seq.,  p.  117,  seq.,  p.  273,  seq.;  "Philosophic  penale,"  p.  215,  seq.  See 
especially  Liszt,  "Die  psychologischen  Grundlagen  der  Kriininalpolitik " 
(Z.,  1896),  p.  479,  seq.,  p.  488,  seq.  Also  U.  Conti,  "  II  delinquente  nel  dirittc- 
criminale,"  in  the  Archivio  giuridico,  1894,  p.  266,  seq. 


280         INDIVIDUALIZATION  OF  PUNISHMENT        [§  89 

But  this  is  not  and  should  not  be  the  point  of  view  of 
the  law.  Its  purpose  is  not  merely  the  establishment  of  the 
facts  and  conditions  but  the  investigation  of  principles,  the 
testing  of  results,  the  conformity  of  the  law  to  social  stand- 
ards. From  this  point  of  view  a  classification  should  be 
adapted  to  the  results  which  the  law  seeks  to  secure.  Crim- 
inals should  be  classified  with  reference  to  the  provisions 
at  our  command,  and  such  provisions  are  of  a  quite  limited 
range,  —  measures  of  repression  together  with  suitable 
varieties  of  discipline. 

In  this  connection  two  observations  may  be  urged:  the 
first  that  for  various  reasons,  of  which  perhaps  the  most 
obvious  is  the  financial  one,  the  variety  of  punitive  treat- 
ments cannot  be  multiplied  indefinitely;  and  the  second, 
that  even  supposing  we  were  in  a  position  to  establish 
varieties  of  discipline  corresponding  to  every  new  variety 
of  criminal,  we  altogether  lack  the  scientific  criterion  to 
determine  for  each  of  the  offenders  appearing  before  the 
courts  the  exact  class  to  which  he  belongs.  Ideal  classi- 
fications may  be  worked  out  on  paper.  We  do  not  com- 
mand a  method  of  moral  diagnosis  that  definitely  establishes 
the  type  to  which  every  individual  properly  belongs.  Let 
us  not  aspire  to  the  impossible  lest  we  descend  to  the  ridic- 
ulous. Most  sociological  classifications  confuse  two  points 
of  view  which  should  be  kept  distinct.  The  one  is  that  of 
the  origin  or  source  of  the  criminality  —  such  as  atavism, 
degeneracy,  influence  of  the  environment  —  to  which  there 
correspond  criminals  by  birth  or  heredity,  the  degenerates, 
and  others.  The  second  is  that  of  the  type  of  criminality; 
such  are  the  wanton,  the  crooks,  the  depraved,  and  many 
others  which  Garofalo  has  well  characterized.1  Finally, 
for  each  of  the  types,  there  are  those  amenable  to  reform 
1  Garofalo,  "La  Criminologie"  (Paris,  F.  Alcan). 


§89]  JUDICIAL  INDIVIDUALIZATION  281 

and  the  incorrigible.  The  former  are  such  as  have  retained 
the  sense  of  morality  or  a  surviving  vestige  thereof,  and 
thus  are  still  capable  of  appreciating  the  immorality  of  their 
actions;  they  lack  an  incentive  to  effort,  and  this  may  be 
supplied.  The  latter  are  such  as  have  lost  all  moral  sense 
and  can  be  but  slightly  influenced;  their  habit  is  set  and 
their  character  is  wholly  depraved;  their  feelings  have 
ceased  to  accord  with  those  of  normal  men.  There  thus 
appear  three  aspects  and  classifications  of  crime,  different 
in  kind  and  scope:  the  first,  in  terms  of  the  origin,  the  sec- 
ond, of  the  type,  and  the  third,  of  the  degree  of  criminality. 
In  its  bearing  upon  the  law  the  first  has  no  decided  import. 
Whatever  the  origin  of  the  criminal  instinct,  the  kind  of 
criminality  which  it  produces  may  be  quite  the  same. 
Whether  the  criminality  be  inherited  or  acquired,  its  psy- 
chological type  may  be  similar.  The  born  murderer,  sup- 
posing there  are  such,  and  the  murderer  by  acquired  habit, 
are  alike  murderers  so  far  as  the  law  is  concerned.  The 
material  distinction  in  such  cases  is  the  degree  of  cruelty, 
violence,  or  brutality  involved.  Yet  in  this  respect  a  differ- 
entiation in  terms  of  the  origin  of  criminality  may  afford 
some  valuable  suggestions.1  Although  it  may  have  no 
proper  legal  status,  nevertheless  it  is  indirectly  useful.  It 
will  be  found  that  the  criminal  by  birth,  if  such  really  exist 
in  Lombroso's  sense  of  the  word,  will  transgress  differently 
from  the  criminal  whose  depravity  is  acquired  and  not  in- 
nate. The  impulses  of  the  latter  need  only  be  redirected; 
his  original  nature  is  sound  and  may  be  appealed  to.  But 
it  remains  no  less  certain  that  there  are  three  distinct  as- 
pects which  should  not  be  confused,  and  which  the  majority 
of  classifications  have  wrongly  presented  as  parts  of  one 
classification. 

1  See  above,  p.  131. 


282         INDIVIDUALIZATION  OF  PUNISHMENT        [§90 

From  the  legal  side,  in  its  bearing  upon  penal  law,  the 
third  aspect,  that  of  the  degree  of  criminality,  is  clearly  of 
greatest  import,  since  all  repressive  measures  are  to  be 
directed  towards  its  eradication.  The  two  other  classifi- 
cations, the  one  in  terms  of  the  type  of  criminality  and  the 
other  in  terms  of  its  origin,  have  value  only  in  so  far  as  they 
may  furnish  useful  suggestions,  either  as  to  the  degree  of 
criminality  or  as  to  the  measures  that  may  counteract  it. 

The  three-fold  classification  is  an  ancient  one,  classic  in 
its  traditions,  even  before  it  was  officially  applied;  and  it 
has  not  as  yet  been  replaced.  It  includes  the  group  of  of- 
fenders without  true  criminality,  offenders  whose  criminality 
is  but  superficial,  and  offenders  tainted  with  a  fundamental, 
and  thus  ineradicable  criminality,  —  the  incorrigibles.  This 
is  a  fundamental  division;  to  it  should  correspond  the  three 
classes  of  punishment  repeatedly  cited  in  former  discussions, 
—  deterrent,  corrective,  and  protective. 

§  90.  Concessions  to  other  Principles 

While  contending  that  this  classification  should  serve  as 
the  basis  and  point  of  departure  for  future  criminal  law,  it 
must  yet  be  conceded  that  for  certain  offenders  some  ac- 
count should  be  taken  of  the  type  of  criminality,  or  even  at 
times,  of  the  origin  of  criminality.  This  applies  to  certain 
varieties  of  criminality  of  definite  nature  and  origin,  which 
experience  has  shown  may  be  relieved  and  counteracted 
by  special  measures.  By  way  of  illustration  one  may  refer 
to  certain  types  of  delinquency,  for  which  special  institutions 
are  now  provided,  wherein  the  discipline  is  directed  towards 
the  counteraction  of  the  specific  tendencies  which  produce 
this  type  of  transgression.  Such  are  asylums  for  drunkards 
and  inebriates,  workhouses  and  institutions  for  vagrants. 
These  have  been  successfully  established  in  other  countries. 


§90]  JUDICIAL  INDIVIDUALIZATION  283 

Experience  has  shown  that  in  such  institutions  it  is  not 
sufficient  to  direct  the  discipline  towards  the  formation  of 
habits  to  counteract  tendencies  exhibited  in  the  one  con- 
stantly repeated  transgression.  The  provisions  should  also 
afford  scope  for  the  influence  of  good  example  and  intimi- 
dation. This  method  has  been  applied  to  vagrants  who, 
in  Germany  for  example,  are  sent  to  special  institutions 
where  they  are  trained  to  work  and  to  regular  habits.  Yet 
no  very  marked  results  have  been  obtained,  because  the 
discipline  is  too  lenient  and  the  detention  too  short.  One 
cannot  hope  to  rebuild  habits  without  ample  time.  Nor 
is  there  any  need  to  avoid  intimidation.  In  view  of  experi- 
ence at  home  and  abroad,  it  is  now  proposed  in  France  to 
place  vagrants  in  solitary  confinement.1  These  vagrants 
are  free-footed  and  irregular,  devoted  to  the  highway  and 
an  open-air  life,  and  they  are  far  less  afraid  of  fatigue  and 
hardship  than  of  a  steady  and  regular  job.  Advantage 
must  be  taken  of  their  weak  point  by  imposing  solitary 
confinement;  they  must  be  subjected  to  what  they  most 
dread.2  This  is  well  enough,  provided  that  solitary  con- 
finement is  not  made  the  sole  factor  in  the  punishment;  for 
solitary  confinement  does  not  amount  to  a  complete  puni- 
tive measure.  It  is  more  a  protection  than  a  punishment; 

1  See  the  report  of  M .  Crisenoy  on  the  "  Repression  du  vagabondage  "  pre- 
sented at  the  meeting  of  December  15,  1897,  of  the  Societe  generale  des 
Prisons  (Revue  penitentiaire,  1898,  p.  4,  seq.);  and  the  ensuing  discussion  at 
the  meeting  in  March,  1898. 

2  See  the  article  in  the  Temps  (Thursday,  January  20, 1898):    "La  Police 
rurale  et  le  vagabondage."    The  question  of  vagrancy  has  been  made  the 
subject  of  many  proposed  laws  since  1898.    The  latest  is  that  of  M.  Etienne 
Flandin,  January  20,  1908,  relative  to  the  "Revision  des  lois  penales  concern- 
ant  le  vagabondage  et  le  mendicite."    The  text  with  a  resume  of  the  previ- 
ous proposals  and  with  references  is  to  be  found  in  the  Revue  penitentiaire, 
February,   1908,  p.  292.     Likewise  see  the  current  discussion  before  the 
Societe  des  Prisons  on  the  "Reorganization  de  la  police  en  province"  (Revue 
penitentiaire,  1908,  Nos.  3  and  4). 


284         INDIVroUALIZATION  OF  PUNISHMENT        [§90 

it  puts  an  abrupt  stop  to  an  irregular  existence,  suspends 
the  social  life,  encourages  reflection,  and  facilitates  thoughts 
of  reform.  As  a  means  of  terminating  the  old  life  it  is  effi- 
cient, but  the  problem  of  preparing  the  way  to  the  new 
life  remains.  Solitary  confinement  is  but  the  negative  side 
of  penal  reform.  There  will  be  no  advance  unless  a  positive 
side  is  added.  A  reliance  upon  solitary  confinement  is  a 
policy  similar  to  that  applied  to  children  with  delicate 
lungs  whose  anxious  parents  do  not  allow  them  to  go  out 
of  doors  in  winter;  they  may  escape  bronchitis  but  their 
lungs  will  never  be  able  to  resist  the  cold  air.  But  that  is 
the  real  object.  Convicts  must  be  given  a  character  capable 
of  resisting  contact  with  the  open  air  of  social  life.  The 
discipline  of  long  solitary  confinement  (as  in  Belgium)  is 
appropriate  only  if,  as  Lombroso  maintains,  the  failure  of 
penitentiary  reform  and  the  hopelessness  of  the  convict's 
moral  improvement  are  conceded.  These  views  are  not 
shared  by  the  supporters  of  penitentiary  discipline  who  regard 
solitary  confinement  as  one  of  their  most  inviolable  tenets. 
In  hopeless  cases  there  is  nothing  left  but  to  inspire  fear; 
and  it  may  be  granted  that  solitary  confinement  is  the  best 
means  of  intimidation.  But  once  condemned  to  such  pun- 
ishment let  the  detention  be  a  long  one;  when  once  prisoners 
have  been  cut  off  from  life,  there  is  nothing  gained  through 
their  return.  They  have  no  fitness  for  social  life,  and  this 
is  as  true  of  vagrants  as  of  others.  After  trying  out  the 
discipline  of  isolation  the  convict  should  be  released  from 
his  solitary  confinement  and  resume  social  contact,  but 
resume  it  through  a  discipline  of  work,  —  a  policy  applied 
to  vagrants  sent  to  workhouses.1 

1  On  these  points,  and  on  the  operation  of  the  new  Belgium  system,  see 
the  interesting  communication  of  M.  Batardy  at  the  meeting  of  March,  1898, 
of  the  Societ6  generate  des  Prisons  (Revue  penitentiare,  1898). 


§91]  JUDICIAL  INDIVIDUALIZATION  285 

§  91.  Special  Types  of  Individualization 

One  cannot  touch  upon  this  problem  of  vagrancy,  which 
however  belongs  to  the  province  of  the  police,  without  ob- 
serving how  decidedly  it  contradicts  the  principles  derived 
from  the  doctrine  of  "responsibility."  If  punishment  is 
to  be  inflicted  only  for  the  commission  of  crime,  by  what 
right  shall  the  vagrant  be  punished  who  is  but  employing 
his  freedom  as  he  chooses?  It  is  obvious  that  he  is  pun- 
ished as  a  matter  of  prevention;  and  that  is  just.  He  is 
really  punished  for  offenses  which  he  may  commit  and  which 
it  is  assumed  definitely  that  he  will  commit,  —  clearly  a  pre- 
ventive punishment  and  nothing  else.  Indeed  some  crim- 
inologists  of  the  classic  school  urge  that  the  vagrant's 
punishment  should  be  most  severe,  —  solitary  confinement 
under  the  most  rigorous  conditions  which  our  penitentiaries 
afford.  In  so  holding  they  are  right;  but  what  becomes  of 
the  principles  of  their  school?  Even  the  adherents  of  the 
Italian  school  have  not  gone  quite  so  far.  The  conclusion 
that  follows  from  this  situation  is  that  the  classic  tenet  of 
the  distinction  between  prevention  and  repression  has  never 
been  more  than  an  abstract  formula  without  practical  ap- 
plication. Accordingly,  when  we  urge  that  repressive  pun- 
ishment shall  be  made  a  preventive  measure,  we  have  in  our 
favor  the  facts  and  the  laws  and,  despite  their  principles, 
the  support  of  the  classic  school  itself. 

Certain  special  disciplines  have  been  cited,  established 
in  view  of  special  offenses;  and  these  take  account  of  the 
varieties  of  criminality.  In  other  directions  the  sources 
of  criminality  must  be  considered;  for  example,  the  neurotic, 
the  degenerate,  and  such  other  classes  as  are  affected  with 
partial  responsibility.  Their  criminality  has  no  special 
type;  they  belong  to  any  of  the  different  varieties.  They 


286         INDIVEDUALIZATION  OF  PUNISHMENT       [§  91 

may  include  murderers  and  thieves,  and  particularly  crim- 
inals of  passion.  Their  common  trait  is  that  their  criminal- 
ity is  bound  up  with  their  temperament.  What  they  require 
is  medical  care  in  special  institutions  which  combine  hospital 
with  prison  treatment.  There  is  a  fair  agreement  as  to 
this  need,  which,  in  case  of  minors,  is  met  by  houses  of  cor- 
rection and  reform.1 

Apart  from  these  exceptional  classes  we  return  to  our 
general  three-fold  classification  together  with  the  three 
classes  of  punishments  corresponding  thereto.  This  classi- 
fication has  two  advantages:  it  rests  upon  data  that  may 
be  relatively  simply  determined;  and  it  involves  an  easily 
provided  type  of  discipline. 

Its  application  is  simple.  Let  us  take  the  two  extreme 
classes,  the  incorrigibles  and  the  offenders  without  natural 
criminality.  As  affecting  incorrigibles,  we  have  an  approxi- 
mate provision  in  the  law  of  1885  on  deportation,  in  so  far 
as  this  applies  to  the  recidivist.  This  is  not  the  provision  of 
the  older  penal  code  for  a  repeated  offense;  for  that  increased 
the  punishment  because  it  considered  that  there  is  an  added 
culpability  in  again  transgressing  after  a  first  condemnation. 
Yet  such  a  measure  issues  from  the  conception  of  respon- 
sibility as  the  basis  of  punishment,  which  is  not  in  question 
here.  It  is  proper  that  the  responsibility  involved  hi  a  sec- 
ond offense  should  influence  the  term  of  sentence.  But 
the  law  of  1885  makes  a  novel  provision  for  habitual  crime; 
it  views  such  repeated  transgression  as  a  basis  of  individ- 
ualization,  as  a  symptom  of  incorrigibility.  It  is  this  new 
view  of  the  habitual  offender  which  is  now  in  question,  and 
it  is  the  only  one  that  should  influence  the  character  of  the 

1  Upon  an  attempt  in  England  to  apply  a  special  treatment  for  minors,  the 
"Borstal  System,"  see  the  article,  already  cited,  of  Sir  Alfred  Wills,  in  the 
Nineteenth  Century,  December,  1907,  p.  881,  seq. 


§  91]  JUDICIAL  INDIVIDUALIZATION  287 

punishment.  It  is  significant  solely  as  a  symptom.  Yet 
the  provisions  of  the  law  of  1885  are  worthy  of  support  for 
several  reasons,  particularly  because  this  law  does  away 
with  the  necessary  enforcement  of  protective  punishments 
on  a  basis  definitely  set  by  the  law.  It  is  important  to  retain 
a  large  discretion  for  the  judge.  There  is  no  legal  criterion 
of  incorrigibility.  Doubtless  there  may  be  certain  factors 
designated  by  the  law  to  guide  the  decision  of  the  judge, 
but  the  Swiss  draft  leaves  the  judge  wholly  free.  At  best 
there  should  be  but  an  initial  limit  set  by  the  law,  and  on 
no  account  an  enforced  application.  The  law  is  concerned 
only  with  laying  down  principles  and  establishing  the  larger 
outlines,  but  leaves  the  details  to  other  authorities. 

At  the  other  extreme,  that  is,  at  the  upper  end  of  the 
classification,  are  the  offenders  who  stand  in  no  need  of 
reform  because  they  are  not  perverts  and  present  no  innate 
criminality.  Here  also  the  bases  of  classification  will  be 
relatively  simple;  they  will  be  furnished,  as  above  noted,1 
by  the  nature  of  the  transgression,  and  again  —  which  is 
the  chief  factor  —  by  the  antecedents  of  the  offender.  In 
principle,  the  first  consideration  will  be  the  absence  of  a 
previous  sentence,  or  rather  the  absence  of  a  previous  offense. 
The  classic  distinction  between  the  recidivist  and  the  sum 
total  of  an  individual's  criminal  record  is  significant  only 
if  we  regard  the  habitual  offense  in  the  traditional  sense  as 
reflecting  responsibility;  it  has  no  pertinence  in  regard  to 
individualization.2  There  should  be  no  misunderstanding 
hi  regard  to  the  two  different  attitudes  just  noted,  the  one 
wholly  objective,  viewing  the  nature  of  the  infraction,  and 

1  See  above,  pp.  261-262. 

1  See  the  draft  of  the  Norwegian  penal  code  and  the  article  which  M . 
Andreas  Urbye  has  devoted  to  it:  "Les  Sentences  indeterminees  dans  le 
nouveau  projet  de  Code  penal  norvegien,"  in  the  Revue  ptnale  suisse,  1898, 
p.  76. 


288         INDIVIDUALIZATION  OF  PUNISHMENT        [§92 

the  other  purely  subjective,  although  in  principle  depending 
upon  the  condition  that  the  crime  is  a  first  offense.  There 
is  no  question  of  the  possibility  of  a  cumulative  charge  in 
the  sense  that  if  the  charge  be  an  offense  not  indicative  of 
subjective  criminality,  the  defendant  may  be  examined  in 
regard  to  his  character,  and  may  be  liable  to  a  punishment 
of  different  nature  from  that  prescribed  by  the  law.  It 
would  hardly  be  fair,  when  the  defendant  is  sentenced  in 
court  to  a  reformatory  punishment,  to  plead  that  the  sen- 
tence be  altered  on  the  ground  that  the  case  concerns  a 
criminal  by  birth.  That  would  be  a  purely  preventive 
measure  after  the  manner  of  those  supported  by  the  argu- 
ments of  the  Italian  school.  Such  extreme  conclusions  we 
have  declined  to  accept.1  Common-law  punishments  should 
be  applied  to  those  convicted  of  common-law  offenses,  yet 
even  in  such  cases  one  should  be  able  to  impose  a  mere  re- 
formatory punishment.  But  the  converse  would  not  apply. 
Unless  we  resort  to  the  extreme  conclusions  of  the  Italian 
school,  we  should  not  consent  to  have  a  political  offender 
subjected  to  the  discipline  of  an  ordinary  criminal  on  the 
ground  that  he  happens  not  to  be  a  worthy  man.  Such  a 
paradox  should  certainly  not  be  countenanced. 

§  92.   Possible  Extensions  of  Individualization ;  Relation  to 
Preventive  Measures 

As  just  noted  these  principles  are  thus  applied  to  all  first 
offenders,  yet  here  likewise  distinctions  must  be  made  be- 
tween individuals,  at  all  events  in  cases  of  common-law 
offense.  But  these  distinctions  are  now  well  drawn  by  the 
courts  under  the  application  of  the  Berenger  law,  though 
under  conditions  presenting  difficulties  in  other  respects. 
Why  should  not  the  same  be  done  in  cases  of  a  choice  be- 
1  See  above,  pp.  122-124,  p.  137. 


§92]  JUDICIAL  INDIVTOUALIZATION  289 

tween  a  reformatory  and  a  deterrent  punishment?  This 
would  be  but  a  compromise  with  the  existing  situation.  As 
things  are  at  present,  it  is  all  or  none,  —  either  imprison- 
ment in  its  ordinary  form  or  the  entire  omission  of  punish- 
ment. We  urge  an  additional  option  between  the  two,  that, 
before  reaching  the  remission  of  punishment,  there  be  in- 
stituted an  intermediate  stage  —  a  substitution  of  punish- 
ment. It  is  true  that  abuses  of  parole  are  readily  cited,  but 
these  are  no  more  pertinently  cited  with  reference  to  parole 
than  to  acquittals  by  juries  in  cases  of  crimes  which  the 
law  punishes  too  severely.  Impunity  is  preferred  to  a  pun- 
ishment that  runs  counter  to  public  conscience.  It  would 
appear  that  only  the  lay  judges,  as  they  are  called,  are  open 
to  guidance  by  humane  considerations  or  common-sense 
justice.  But  in  so  far  as  professional  judges  follow  the  pre- 
cedent, is  it  not  to  their  credit?  What  influences  the  verdict 
in  such  cases  is  not  the  injustice  of  the  minimum  limit  of 
the  punishment  (since  this  no  longer  applies  to  "mitigated" 
sentences  to  reformatories) ;  the  jury  take  umbrage  at  the 
discrepancy  between  the  punishment  and  the  individual. 
To  express  their  indignation  at  the  crime  they  pronounce 
a  severe  sentence,  but  in  sympathy  for  the  individual  they 
grant  parole.  This  recalls  the  nominal  punishments  of  the 
ecclesiastical  law.  There  are  cases,  however,  in  which  the 
punishment  seems  excessive  even  to  the  judges;  they  ask  that 
a  new  statute  give  them  an  additional  alternative.  This  new 
statute  will  not  curtail  the  field  of  application  of  parole;  that 
would  be  regrettable.  It  will  provide  an  exceptional  punish- 
ment having  none  of  the  disadvantages  of  ordinary  imprison- 
ment, which  they  may  impose  at  their  discretion. 

There  remains  the  intermediate  class  of  true  criminals, 
who  are  however  amenable  to  reform;  they  result  from  the 
elimination  of  the  two  other  classes,  —  a  point  that  needs 


290         INDIVTOUALIZATION  OF  PUNISHMENT        [§92 

no  further  explanation.  All  this  may  be  practically,  simply, 
and  readily  introduced,  without  violence  to  the  general 
policy  of  our  laws  and  our  penal  organization.  It  requires 
no  radical  innovation,  and  still  less  a  complete  reversal  of 
policy;  it  requires  the  special  direction  of  existing  provi- 
sions. We  already  have  the  three-fold  classification; l  we 
plead  for  its  more  rational  application;  and  the  same 
applies  to  the  regulation  of  the  punitive  discipline. 

Deterrent  punishments  are  not  directed  to  the  reform 
or  re-education  of  the  vicious.  Their  purpose  is  to  set  an 
example  that  shall  at  once  intimidate  those  upon  whom 
sentence  is  pronounced  (which  the  Germans  call  an  individ- 
ual prevention),  and  intimidate  others  as  well  by  way  of 
general  prevention.  This  is  the  purpose  of  awards  of  com- 
pensation and  fines  and  their  development  as  advocated 
by  Garofalo, —  which  are  commendable  provisions  worthy 
of  favorable  application.  Such  is  likewise  the  function  of 
solitary  confinement.  This  is  decidedly  deterrent,  but  yet 
a  punishment  subject  to  a  special  discipline  somewhat  an- 
alogous to  that  which  detention  provides  for  political  crim- 
inals. Without  entering  into  details,  it  is  sufficient  to  recall 
the  question  actively  discussed  at  the  Paris  Congress  of 
1895  on  the  extension  of  "enforced"  labor  even  to  political 
punishments,  —  a  question  that  here  comes  up  anew.  WTill 
not  the  best  solution  consist  hi  a  combination  of  the  two, 
an  enforced  labor  but  a  free  choice  of  the  kind  of  labor?  In 
this  way  manual  labor  will  not  necessarily  be  imposed  if 
the  prisoner  can  show  himself  fit  for  other  occupation;  yet 
this  must  not  be  a  parody  of  real  work.  Such  measures  are 
peculiarly  appropriate  to  the  class  now  under  consideration, 
— persons  who  at  all  costs  must  be  saved  from  contact  with 
others,  from  the  common  work-room,  from  all  that  degrades 
1  See  above,  p.  209. 


§92]  JUDICIAL  INDWIDUALIZATION  291 

and  contaminates.  As  to  fines,  if  they  are  proportioned 
to  the  resources  of  the  defendant,  they  present  the  advan- 
tages set  forth  by  Garofalo.  They  are  the  least  dishonoring, 
and  present  the  great  advantage  that  they  do  not  interrupt 
a  man's  business  or  injure  him  professionally. 

Punishments  in  behalf  of  public  security  are  directed  to 
elimination,  with  no  great  expectations  of  influencing  those 
affected.  They  should  consist  in  a  discipline  similar  to  that 
enforced  in  jails,  while  reserving  deportation  to  the  colonies 
for  the  more  worthy  and  as  a  reward  of  good  conduct.  Even 
incorrigibles  need  not  be  despaired  of.  Such  "colonial" 
punishments  must  be  accepted  in  the  light  in  which  they 
are  considered  by  those  who  undergo  them;  if  considered 
as  a  lenient  punishment,  it  should  be  the  privilege  of  those 
partly  released.  Colonization  should  be  reserved  for  the 
better  class  and  not  for  the  worst.  The  convict  must  enter- 
tain the  hope  of  freedom  by  absorbing  a  different  view  of 
life.  Saved  from  the  promiscuous  association  of  the  prison 
he  may  be  regenerated;  he  may  come  to  believe  that  on  the 
frontiers  of  civilization  he  may  still  serve  society,  no  longer 
his  enemy  but  his  benefactor,  to  whom  he  repays  his  debt 
of  obligation. 

Corrective  punishments  are  unquestionably  the  most  dif- 
ficult of  all  to  organize.  Very  promising  of  worthy  results 
is  the  progressive  Irish  system,  or  some  proper  adapta- 
tion thereof,  with  its  variety  of  progressive  disciplines 
carried  out,  if  need  be,  in  different  institutions;  thus  solitary 
confinement  at  the  outset,  next  occupation  in  the  work- 
shop, then  transfer  to  an  agricultural  colony,  and  lastly 
conditional  freedom  with  considerable  discretion  of  the  ad- 
ministration as  to  conditions.  This  plan  seems  to  exclude 
deportation,  but  not  altogether.  There  should  be  reserved 
for  the  worst  crimes,  those  that  carry  a  long-term  sentence, 


292         INDIVTOUALIZATION  OF  PUNISHMENT        [§92 

—  after  the  period  of  solitary  confinement  and  a  certain 
period  of  probation,  —  the  possibility  of  the  conversion 
of  the  punishment.  This  likewise  should  be  offered  as 
an  encouragement  for  good  conduct,  affording  a  transfer 
to  the  colonies  under  discipline  of  varied  privileges,  which 
means  colonization  for  the  more  worthy,  though  a  long- 
term  if  not  permanent  colonization.  A  similar  alternative 
was  attempted  in  1852,  before  the  law  of  1854.  Possibly 
deportation  may  thus  be  made  to  afford  all  the  advantages 
which  were,  and  still  are,  expected  of  it,  without  the  dis- 
advantages that  have  brought  it  into  disfavor.  It  is  in  this 
direction  that  the  commission  for  the  revision  of  the  penal 
code  should  proceed.  The  draft  favors  the  uniform  type  of 
punishment  with  successive  stages;  unfortunately,  it  re- 
stricts far  too  much  the  period  of  conditional  liberation.1  It 
limits  transfer  to  the  colonies  to  the  incorrigible  under  the 
form  of  deportation.  We  should  have  more  confidence  in 
the  success  of  penal  colonies  if  they  were  composed  of  first 
offenders,  even  though  these  had  committed  serious  crimes, 
to  whom  the  life  in  the  colonies  is  offered  as  a  means  of  re- 
instatement, but  with  definitive  expatriation.  It  is  probable 
that  those  who  will  thus  choose  expatriation  will  be  the  ener- 
getic individuals,  who  feel  the  burden  of  their  transgressions 
and  are  anxious  to  take  up  a  new  career.  All  these,  however, 
are  details  in  regard  to  which  an  agreement  can  readily  be 
reached. 

Such  are  the  general  outlines  of  the  system.  As  affecting 
those  amenable  to  reform  by  suitable  punishments,  there 
still  remains  the  difficulty  resulting  from  the  provision  of 
the  fixed  term,  —  the  difficulty  of  reconciling  a  moral  re- 
generation with  the  certainty  of  liberation  at  a  definite  date. 
Thus  we  reach  the  last  part  of  this  series  of  considerations, 

1  See  Le  Poittevin,  cited  above  (Revue  penitentiaire,  1893,  pp.  160-161). 


§92]  JUDICIAL  INDIVIDUALIZATION  293 

relating  to  the  administrative  individualization  under  the 
form  of  the  indeterminate  sentence.1 

1  As  to  the  procedure  considered  above  on  page  283,  it  may  be  noted  that 
if  this  combination  appears  a  little  complicated  one  may,  as  an  intermediate 
stage,  associate  the  jury  in  the  determination  of  the  sentence,  —  as  is  de- 
manded in  the  recent  draft  of  the  Garde  des  sceaux  (Keeper  of  Seals).  This 
reform  seems  to  be  gaining  favor.  The  distinction — in  itself  logical,  and  thor- 
oughly legal  as  an  abstract  formula  —  between  the  function  of  the  Jury  and 
that  of  the  Court  has  been  tested,  weighed  and  found  wanting.  It  does  not 
adjust  itself  to  practice  and  conditions.  In  France  present  experience  condemns 
it.  (See  the  draft  of  the  law  having  for  its  object  the  conferring  upon  the  crimi- 
nal jury  of  the  power  to  participate  in  the  application  of  the  punishment:  Offi- 
ciel  1908,  Documents  parlementaires,  Chambre  des  deputes,  No.  1605.) 

To  return  to  the  question  which  constituted  the  principal  theme  of  this 
chapter,  we  may  record  that  since  1898  the  advance  of  opinion  has  been 
tending  in  favor  of  the  influences  attaching  to  the  recognition  of  the  motive, 
not  alone  upon  the  duration  of  punishment,  its  mitigation  or  aggravation  — 
as  in  the  Swiss  draft  —  but  also  upon  its  nature,  —  as  in  the  Italian  penal 
code  of  1889.  See  AndrSades,  "Les  peines  alternatives  ou  paralleles"  (Thesis, 
Paris,  1899). 

Pertinent  to  the  legislative  point  of  view  is  article  24,  Norwegian  penal 
code,  which  reads:  "When  hard  labor  is  the  only  punishment  depriving  one 
of  liberty  prescribed  by  the  law,  it  may  be  replaced  by  a  punishment  of  im- 
prisonment of  equal  duration,  if  the  circumstances  permit  of  the  supposition 
that  the  act  was  not  the  result  of  an  evil  intent." 

On  the  nature  of  the  regulation  of  hard  labor  and  imprisonment  respec- 
tively, according  to  the  Norwegian  penal  code,  see,  in  the  translation  of  this 
code,  the  note  under  article  24;  and  for  a  critical  estimate  of  the  interpreta- 
tion of  the  text,  see  the  preface  of  M.  Garqon,  p.  xiii,  seq. 

Even  in  the  domain  of  French  jurisprudence  one  can  observe  a  tendency 
to  take  the  motive  into  consideration.  See  Vidal,  "  Cours  de  droit  criminel  et 
de  science  p£nitentiaire"  (edition  of  1906),  p.  183,  note  1.  On  the  influence 
of  the  motive,  see  the  Bulletin  de  I'Union  intern,  du  droit  p£nal,  1908,  p.  287. 

Perhaps  after  due  deliberation  it  may  seem  that  the  detailed  system  pre- 
sented in  the  above  chapter  would  prove  most  difficult  of  application,  espe- 
cially on  the  part  of  the  judges;  and  that  frequent  and  serious  errors  would 
occur.  The  system  is  based  upon  the  view  that  the  judge  can  always  deter- 
mine the  true  character  of  the  delinquent  from  the  antecedents  and  factors 
of  the  case,  and  will  have  available  sufficient  data  to  classify  him  in  one 
or  another  group,  and  to  apply  to  him  one  or  another  kind  of  punishment. 
But  it  is  evident  that  often  such  a  decision  will  be  impossible  to  the  judge, 
who  can  then  hardly  escape  the  risk  of  making  sad  mistakes.  How  will  he, 
relying  solely  upon  the  briefs  and  the  impressions  in  court,  come  into  pos- 
session of  sufficient  evidence  to  determine  positively  the  moral  and  psycho- 
logical nature  of  the  agent;  and  particularly  how  shall  he  know  in  advance 


294         INDIVIDUALIZATION  OF  PUNISHMENT        [§  92 

the  effect  of  such  and  such  a  punishment  of  such  or  other  character?  This 
can  only  be  determined  by  experience.  Will  it  not  necessarily  result,  so  far 
as  concerns  the  duration  of  punishment,  in  leaving  it  to  the  choice  of  the 
administration,  under  the  form  of  an  indeterminate  sentence;  so  that  in 
course  of  punishment  one  may  pass  from  one  punishment  to  another,  if  the 
first  seems  to  be  working  contrarily  to  what  was  anticipated?  But  even  in 
this  event  we  are  in  the  presence  of  a  decision  less  vague  and  less  arbitrary 
than  when  the  issue  was  that  of  leaving  to  the  administration  the  fixation 
of  the  term.  The  many  objections  made  to  the  latter  system  will  now  be 
found  to  disappear,  especially  under  the  system  of  alternative  sentences 
introduced  in  England,  and  now  proposed  for  minors.  It  is  considered  in 
the  draft  now  under  discussion  in  Parliament,  "The  Prevention  of  Crime 
Bill"  (see  the  Times,  June  13,  1908,  p.  15,  and  the  Daily  Express,  June  18, 
1908).  Thus  for  minors,  to  whom  a  lenient  discipline  is  to  be  applied,  the 
Borstal  system  permits  the  administration,  if  it  considers  by  its  experience 
that  this  discipline  is  not  adapted  to  the  individual  in  question,  to  apply 
to  the  judge  who  issued  the  original  sentence,  to  substitute  a  common-law 
imprisonment  for  the  rest  of  the  term.  It  thus  results  for  minors  —  so  far 
as  concerns  the  nature  of  the  punishment  and  not  the  duration  —  that 
every  sentence  which  prescribes  a  special  discipline  becomes  only  a  pro- 
visional sentence  liable  to  be  replaced  in  course  of  punishment  by  a  different 
sentence.  The  judge  has  at  his  disposal  the  one  or  the  other,  but  the  second 
is  not  to  be  substituted  for  the  first  except  upon  actual  experience,  and  not 
at  the  time  of  commitment,  as  is  proposed  in  our  parallel  punishments. 
Hence  the  name  of  alternative  sentences.  It  is  evident  that  such  a  system 
may  likewise  be  applied  to  adults  in  a  system  of  punishments  that  adopts 
several  parallel  types  of  punishments  even  for  adults. 

Finally  to  complete  the  evolution,  we  must  indicate  the  several  laws  and 
drafts  relative  to  children  and  minors  in  general.  In  regard  to  them  every 
one  is  agreed,  even  the  most  conservative  classicists,  that  it  is  the  principle 
of  individual iz.it ion  that  alone  should  be  taken  into  consideration.  Under 
the  technical  expression  of  "discretion,"  understood  formerly  solely  in 
terms  of  responsibility,  it  is  now  the  entire  personality  that  is  regarded. 
One  may  also  speak  in  this  connection  of  the  Juvenile  Courts  as  they  have 
been  organized  in  the  United  States,  and  of  the  valuable  and  successful 
movement  undertaken  by  M.  Ed.  Julhiet  with  the  purpose  of  establishing 
the  same  improvements  in  France.  Some  account  of  the  views  expressed  in 
various  quarters  on  the  subject  of  reform  schools  and  in  favor  of  the  applica- 
tion of  indeterminate  sentences  in  the  cases  of  minors  should  also  be  given. 
For  an  account  of  the  important  movement  relative  to  measures  affecting 
minors,  it  is  sufficient  to  refer  to  the  Congres  national  de  droit  p6nal  de 
Toulouse,  1907,  of  which  a  report  will  be  found  in  the  Bulletin  de  I' Union 
Internationale  de  droit  penal,  1908,  p.  3,  seq.  (See  also  in  the  same  bulletin 
in  the  same  number  in  the  Appendix,  the  draft  of  the  Austrian  law  on  the 
penal  treatment  of  minor  criminals  and  on  the  protection  of  minors,  1907.) 


CHAPTER  X 

ADMINISTRATIVE  INDIVIDUALIZATION 

§  93.  The  Administrative  Treatment. 

§  94.  The  Principle  of  Indeterminate  Sentences:  the  Elmira  System. 

§  95.  Modified  Indeterminate  Sentences  adapted  to  European  Conditions. 

§  96.  Difficulties  in  the  Extension  of  the  System. 

§  97.  The  Personal  and  Religious  Factors  in  Reform. 

§  93.   The  Administrative  Treatment 

IN  matters  of  law,  even  more  than  in  other  fields,  logic 
asserts  its  demands.  As  soon  as  one  enters  on  a  plan  of 
individualization  of  punishment  it  appears  that  judicially 
individualization  must  ever  be  approximate,  and  thus  in- 
adequate, both  as  affects  the  term  of  punishment  (which 
alone  is  ordinarily  considered)  and  the  nature  of  the  dis- 
cipline in  which  the  movement  had  its  origin. 

The  classification  of  offenders  and  appropriate  punish- 
ments must  be  general,  for  it  is  impossible  to  consider  an 
indefinite  variety  of  punishments  for  the  purpose  of  ad- 
justing them  in  every  group  to  the  precise  moral  tempera- 
ment of  each  individual.  Judiciary  individualization  is  but 
a  form  of  diagnosis.  It  is  an  individual  classification  based 
upon  an  actual  situation, —  that  is,  an  actual  subject  — 
instead  of  upon  an  abstract  personality,  as  is  the  case  in  in- 
dividualization by  law.  But  in  practical  morals,  as  in  medi- 
cal therapeutics,  mere  diagnosis  is  not  sufficient;  a  remedy 
must  be  applied,  and  that  varies  in  each  case.  Now  in  mat- 
ters of  criminology  the  application  belongs  not  to  the  official 
pronouncing  the  sentence  but  to  the  one  administering  it, 

295 


296         INDIVIDUALIZATION  OF  PUNISHMENT        [§93 

the  penitentiary  administration.  The  law  must  grant  to  the 
administration  sufficient  initiative  and  flexibility  in  the  ad- 
justment of  the  discipline,  so  that  it  may,  in  turn,  adjust 
the  application  of  the  punishment  to  the  educational  and 
moral  requirements;  and  that  is  what  is  meant  by  admin- 
istrative individualization. 

As  concerns  the  term  of  sentence,  administrative  individ- 
ualization raises  two  questions:  that  of  the  discipline,  and 
that  of  the  term.  Practically  the  two  are  one.  It  is  clear 
that  moral  regeneration  cannot  be  compatible  with  the  cer- 
tainty of  a  release  at  a  fixed  date.  If  punishment  is  to  be 
primarily  a  reformative  measure,  a  moral  treatment,  its 
length  cannot  be  determined  in  advance.  One  cannot  an- 
ticipate the  time  needed  for  a  re-education;  and  it  is  quite 
as  absurd  to  limit  the  period  to  so  many  months  or  years,  as 
it  would  be  for  the  physician,  when  summoned  to  a  serious 
case  of  illness,  to  predict  a  cure  at  a  fixed  date.  Moreover 
the  case  is  not  one  of  a  true  disease,  for  a  disease  presents 
an  acute  crisis  which  has  its  set  period.  The  penal  treat- 
ment is  applied  to  a  condition  which  is  nearly  always  chronic, 
a  condition  which  is  part  of  the  moral  nature;  so  that,  in 
fact,  it  is  not  a  question  of  curing  a  disease,  but  of  rebuilding 
a  temperament.  The  physician  may  anticipate  the  period 
of  an  acute  crisis,  but  can  he  judge  how  long  will  be  re- 
quired to  alter  the  temperament  of  a  neurotic,  or  to  overcome 
the  taint  of  congenital  phthisis?  The  case  of  a  criminal 
under  a  reformatory  punishment  is  no  different.  From  his 
knowledge  of  the  case  the  judge  can  determine  the  most 
appropriate  punishment.  Possibly  he  can  tell  whether  the 
defendant  is  a  true  or  a  false  criminal,  and  whether  he  is 
susceptible  to  reform  or  incorrigible,  and  accordingly  select 
the  discipline  and  apply  the  appropriate  punishment.  But 
how  can  he  at  the  same  time  set  its  term,  and  foresee  how 


§93]        ADMINISTRATIVE  INDIVEDUALIZATION         297 

long  will  be  required  to  convert  the  criminal  into  an  honest 
man?  It  is  as  though  the  alienist  who  signs  a  commitment 
to  an  asylum,  or  the  ordinary  physician  when  he  places  a 
patient  in  the  hospital,  were  to  indicate  at  that  time  what 
is  to  be  the  date  of  discharge.  The  patient's  discharge  must 
depend  upon  his  cure,  that  is,  upon  his  restoration  to  phys- 
ical health.  The  same  should  apply  to  the  criminal.  He 
should  not  be  restored  to  liberty  and  the  lif  e  of  society  until 
he  has  ceased  to  be  a  menace  to  society  and  has  recovered 
his  moral  health. 

But  it  is  not  the  province  of  the  judge  to  decide  this.  The 
decision  can  be  reached  only  in  the  course  of  the  adminis- 
tration of  punishment  through  the  judgment  of  those  who 
closely  follow  the  progress  of  the  convict,  observe  him  at 
work,  and  witness  the  regeneration  that  is  taking  place.  It 
is  not  the  judge  who  can  determine  the  time  of  a  discharge 
from  the  penitentiary,  but  the  penitentiary  administration 
itself.  The  judge  signs  the  warrant  and  makes  the  choice 
of  punishment;  he  determines  the  institution  to  which  the 
individual  is  to  be  sent;  but  he  does  not  endorse  the  dis- 
charge. This  is  a  matter  for  the  administration  to  which  the 
convict  has  been  assigned.  Accordingly  the  judge  has  to 
determine  not  the  length  but  only  the  nature  and  choice  of 
the  punishment.  It  has  been  noted  in  behalf  of  judiciary 
individualization  that  the  judge  should  fix  the  length  of  the 
punishment  according  to  the  subjective  criminality  of  the 
crime,  and  fix  the  nature  thereof  according  to  the  general 
criminality  of  the  agent.  Henceforth  the  first  of  these  two 
formulae  may  be  omitted.  The  judge  has  but  to  set  the 
nature  of  the  punishment,  and  thus  need  consider  only  the 
general  criminality  of  the  agent.  The  criminality  of  the  act 
is  a  matter  of  indifference.  However  this  fixation  of  the 
term  of  punishment  according  to  the  criminality  of  the  act 


298         INDIVIDUALIZATION  OF  PUNISHMENT       [§94 

remains  as  the  necessary  consequence  of  the  conception  of 
penalty,  which  under  all  circumstances  is  bound  to  persist. 
Must  there  then  remain  an  irreconcilable  antagonism  be- 
tween the  conception  of  penalty  and  of  individualization? 
As  yet  we  have  found  no  objection,  in  principle,  in  ranging 
them  side  by  side,  the  one  serving  as  the  justification  and 
the  validation  of  the  other.  Will  it  follow,  if  we  carry  out 
the  plan  to  its  logical  conclusion,  that  the  reconciliation  will 
become  impossible,  and  that  the  policy  cannot  be  consist- 
ently carried  through? 

§  94.   The  Principle  of  Indeterminate  Sentences :   the 
Elmira  System 

If  then  we  reject  the  determination  by  the  judge  of  the 
length  of  punishment,  the  last  trace  of  the  conception  of 
penalty  and  responsibility  will  disappear  and  the  notion  of 
justice  will  have  no  place.  It  becomes  a  matter  of  a  moral 
cure  and  hospital  treatment.  In  this  system  the  sentence 
will  carry  no  date  of  expiration  of  the  punishment;  that  is, 
the  judge  will  not  determine  in  advance  in  the  sentence  the 
fixed  term  of  the  punishment.  This  is  called  the  system  of 
the  indeterminate  sentence.  By  this  provision  there  is  a 
double  individualization,  assigned  to  two  authorities:  one 
part  falls  to  the  judge,  who  retains  the  choice  of  the  punish- 
ment,—  judiciary  individualization;  and  the  other  falls  to 
the  administration,  —  administrative  individualization;  the 
latter  alone  determining  the  length  of  the  punishment  and 
terminating  it  when  it  is  no  longer  considered  necessary. 

It  thus  becomes  clear  that  the  two  points  of  view  converge, 
for  there  can  be  no  indeterminateness  as  to  duration  unless 
there  is  also  an  appropriate  and  individualized  adjustment 
as  to  discipline.  We  cannot  presume  to  detain  inmates  in 
prison  or  in  analogous  institutions  for  an  indeterminate 


§94]        ADMINISTRATIVE  INDIVTOUALIZATION         299 

period  unless  we  subject  them  to  a  discipline  to  effect  such 
moral  reform  as  their  character  permits.  The  system  is  in 
practical  operation,  and  in  practice  the  two  phases  are  merged 
and  the  two  principles  applied  conjointly. 

It  must  not  be  supposed  that  this  is  but  a  dream,  or  an 
invention  of  closet  philosophers.  The  dream  has  been 
realized  and  the  credit  does  not  belong  to  the  philosophers. 
Indeterminate  sentences  are  not  an  invention  of  doctrinaires 
and  idealists;  they  are  an  accomplished  fact.  They  orig- 
inated in  the  mind,  or  rather  in  the  heart,  of  an  apostle; 
but  this  apostle  was  American,  and  Americans  are  not  in  the 
habit  of  keeping  their  ideas  in  the  abstract:  they  transform 
them  into  deeds.1 

About  1876  the  director  of  a  reformatory  institution  in 
New  York  State,  Mr.  Brockway,  discouraged  by  the  un- 
satisfactory results  obtained  under  the  traditional  method, 
conceived  the  plan  to  make  moral  reform,  which  was  gen- 
erally agreed  to  be  the  function  of  punishment,  the  sole  and 
constant  purpose  not  alone  of  the  administration  but  of  the 
prisoners  themselves.  The  preaching  of  good  conduct  to 
prisoners  is  carried  on  unceasingly,  but  what  does  it  amount 
to?  They  know  that  at  a  set  time  they  will  be  released  and 
that,  whether  the  punishment  has  been  effective  or  not, 
their  liberation  is  assured.  What  needs  to  be  guaranteed  is 
not  the  release  but  the  moral  improvement.  Such  improve- 
ment is  made  the  very  condition  of  release,  and  thereby 
gives  a  definite  interest  to  the  endeavors  and  efforts  of 
moral  reform  which  the  prisoner  himself  exercises. 

The  great  difficulty  in  such  a  system  is  to  devise  a  reliable 
test.  It  would  be  easy  for  a  prisoner  to  pretend  a  conversion. 
This  seems  peculiarly  true  in  America,  in  an  environment 

1  fridiric  LSvy,  "Lea  Sentences  indetermineea "  (Paris,  1896);  the  bibli- 
ography of  the  subject  will  also  be  found  there. 


300         INDIVIDUALIZATION  OF  PUNISHMENT        [§94 

strongly  imbued  with  the  religious  spirit.  If  any  such  dem- 
onstrations of  attained  salvation  were  to  be  readily  accepted, 
would  not  the  system  place  a  premium  on  hypocrisy?  1 

Mr.  Brockway  is  too  well  acquainted  with  the  inmates  of 
American  prisons  not  to  have  foreseen  this  danger;  he  has 
organized  the  discipline  so  that  it  itself  shall  serve  as  a  test 
and  evidence  of  the  moral  progress  of  those  subjected  there- 
to. There  must  be  certain  definite  indications  to  mark  these 
stages  of  progress.  The  system  of  indeterminate  sentences 
is  not  compatible  with  the  discipline  of  State  penitentiaries. 
It  is  practicable  only  under  a  specially  devised  system,  one 
that  departs  as  little  as  possible  from  the  life  of  a  free  society 
with  the  initiative  that  it  involves  and  the  efforts  which  it 
enforces.  Thus  alone  may  the  attitude  of  the  prisoner 
towards  a  regular  life  be  stimulated,  may  he  serve  an  ap- 
prenticeship to  a  regular  life,  and  be  readapted  to  the  life 
of  society.  This  double  advantage  Mr.  Brockway  based 
on  the  data  and  experience  of  a  penal  community  at  Elmira 
in  the  State  of  New  York. 

This  place  was  not  a  penitentiary  properly  so  called,  but 
a  house  of  correction,  a  reformatory,  a  private  institution. 
But  Mr.  Brockway  secured  from  the  State  of  New  York  the 
concession  that  the  courts  should  be  authorized  to  commit 
to  his  charge  certain  offenders,  —  in  general,  first  offend- 
ers and  young  men  who  seemed  particularly  promising.  To 
this  the  State  and  courts  agreed;  and  under  this  arrangement 
the  judge  could  avail  himself  of  two  kinds  of  punishment, 
either  the  ordinary  punishment  in  the  penitentiary  with  a 
fixed  term,  or  a  special  punishment  at  Elmira  under  an  in- 
determinate sentence.  Thus  private  initiative  and  public 
authority  combined  for  the  most  effective  organization  of 

1  See  what  Mr.  Montgomery  has  said  in  regard  to  English  conditions  in 
the  article  cited  above  (Nineteenth  Century,  January,  1908,  pp.  82-83). 


§95]        ADMINISTRATIVE  INDIVIDUALIZATION         301 

punishment.  To  us,  who  are  committed  to  the  policy  of 
State  prerogative,  this  seems  rather  upsetting.  We  hold 
that  punishment  belongs  exclusively  to  the  State  and  to 
public  authority.  This  axiom,  like  many  another,  if  made 
an  invariable  rule  may  prove  to  be  a  mistake.  The  province 
of  the  State  is  to  pronounce  sentence,  but  the  execution  of 
the  punishment  belongs  to  those  to  whom  the  State  is  will- 
ing to  entrust  it;  and  these  may  well  be  private  institutions 
due  to  individual  initiative.  The  plan  has  the  distinct  ad- 
vantage of  making  private  individuals  patrons  of  those  who 
stand  in  need  of  social  reinstatement  and  of  released  prisoners. 
Respectable  persons  are  apt  to  assume  an  attitude  of  dis- 
trust or  aversion  towards  those  who  have  served  time;  the 
prejudice  against  those  who  have  been  inmates  of  prisons 
is  familiar.  But  if  these  same  respectable  persons  under- 
take to  interest  themselves  in  the  public  penal  problems,  as 
Mr.  Brockway  has  done,  they  will  come  in  contact  with 
prisoners  and  constitute  themselves  their  moral  sponsors. 
When  this  occurs,  as  in  America  (for  example  in  Massachu- 
setts), these  quasi-guardians,  instead  of  impeding  the  social 
reinstatement  of  released  prisoners,  facilitate  it  in  every 
way;  and  prejudices  are  removed. 

§  95.    Modified  Indeterminate  Sentences  adapted  to  European 

Conditions 

It  is  upon  such  facts  and  conceptions  that  the  institution 
at  Elmira  is  based.  Its  success  is  practically  established. 
M.  Levy's  thesis  gives  the  statistics  and  details  of  the  sys- 
tem. It  is  sufficient  here  to  indicate  the  combination  of  the 
two  points  of  view  in  regard  to  administrative  individual- 
ization  which  it  embodies,  the  elasticity  and  flexibility  of 
the  treatments  fitting  in  well  with  the  indeterminateness  of 
the  sentence.  It  is  indispensable,  if  the  treatment  is  to  have 


302         INDIVIDUALIZATION  OF  PUNISHMENT        [§  95 

a  fair  test  and  if  the  evidence  of  its  success  is  to  be  furnished 
by  the  authorities  of  the  reformatory,  that  the  director 
thereof  retain  large  discretion  in  adapting  occupation  to 
ability,  and  the  nature  of  the  work  to  the  severity  of  the 
discipline.  Accordingly,  the  individualization  is  made  in 
the  course  of  punishment,  not  by  larger  or  smaller  groups 
and  classes,  as  would  be  done  by  the  Court,  but  for  each  in- 
dividual in  particular,  according  to  the  personal  experience 
resulting  from  the  first  application  of  the  punishment. 

Judiciary  individualization,  which  deals  with  large  num- 
bers, is  supplemented  by  administrative  individualization, 
which  deals  concretely  with  individuals.  The  first  deter- 
mines only  the  manner  of  punishment;  the  second,  for  the 
same  class  of  punishments,  determines  the  discipline,  —  an 
ideal  combination. 

Somewhat  anticipating  the  system  of  indeterminate  sen- 
tences, it  was  urged  so  long  ago  as  at  the  Congress  of  Stock- 
holm, that  the  punishment  should  be  set  only  in  its  general 
outlines,  not  in  detail;  and  that  the  administration  should 
have  large  freedom  and  initiative  in  determining  the  in- 
dividual adjustment.  It  was  the  most  comprehensive  plea 
advanced  in  behalf  of  administrative  individualization.1 
The  indeterminateness  of  the  sentence  was  but  a  further 
license  following  upon  the  discretionary  right,  as  we  may 
say;  for  it  was  discretion  in  the  sense  used  in  ancient  law, 
assigned  to  the  penitentiary  administration. 

The  reformatory  at  Elmira  has  in  some  respects  realized 
what  was  advocated  at  the  Congress  of  Stockholm.  The 
system  has  attracted  general  attention  and  stimulated  re- 
flection. It  has  called  forth  strong  opposition,  but  it  like- 

i 

1  See  the  account  given  of  the  meetings  of  the  Congres  penitentiaire  in- 
ternational de  Stockholm,  Vol.  I,  p.  110,  aeq.;  for  the  proposed  solutions  see 
pp.  137-138. 


§95]        ADMINISTRATIVE  INDIVIDUALIZATION         303 

wise  has  its  enthusiastic  supporters.  Some  are  not  satisfied 
with  this  partial  experiment  with  a  selected  number,  but 
would  like  to  see  the  system  extended  and  applied  to  all 
promising  cases.  This  would  make  an  ideal  type  of  reform- 
atory punishment.  Its  general  organization  would  be  about 
as  follows:  the  sentence  would  fall  into  two  parts,  the  first 
considering  the  evidence  and  the  choice  of  punishment;  and 
then  in  course  of  punishment  and  upon  the  initiative  of 
the  reformatory  administration,  a  second  sentence  as  to  the 
term  thereof.  The  first  would  consider  only  the  crime  and 
the  criminality  of  the  criminal  at  the  time  of  the  crime;  the 
second  would  have  nothing  to  do  with  the  crime  and  would 
consider  only  the  presumable  morality  of  the  prisoner  at 
the  period  when  the  sentence  is  imposed.1  The  decision  of 
the  judge  would  still  influence  the  period  of  the  punishment, 
but  it  would  be  operative  at  two  points:  first,  in  the  order  of 
commitment,  and  second,  in  the  order  of  discharge.  This 
system  affords  a  reply  to  the  objections  that  have  been  made 
against  the  possible  abuses  of  the  system  if  all  is  left  to  the 
discretion  of  the  administration. 

To  complete  the  account  of  the  system  it  should  be  men- 
tioned that  several  degrees  of  indeterminateness  have  been 
devised.  If  the  first  sentence,  that  of  commitment,  does 
not  set  either  a  minimum  or  a  maximum  limit  of  length 
there  will  be  an  absolute  indeterminateness.  This  may  seem 
somewhat  startling  because  theoretically  there  is  the  pos- 
sibility of  holding  a  man  for  life.  But  a  relative  indeter- 
minate sentence  is  possible  in  one  of  several  forms.  It  may 
have  merely  a  maximum  limit  to  avoid  the  danger  of  arbi- 
trarily prolonged  detentions;  but  even  then  the  indetermi- 
nate sentence  is  quite  different  from  the  ordinary  fixed-term 

1  Sternau,  "Die  Abschaffung  der  Straf masse,"  Zeit.  f.  d.  Gea.  Str.  R.  W., 
XIII,  pp.  29-30. 


304         INDIVIDUALIZATION  OF  PUNISHMENT        [§  95 

sentences,  for  the  reason  that  within  the  limit  of  the  maxi- 
mum period  a  discharge  may  at  any  time  be  granted  when 
it  shall  appear  that  a  reform  is  accomplished;  and  again,  in 
that  it  is  held  that  such  limit  may  properly  exceed  the  legal 
term  of  the  punishment  under  a  fixed-term  sentence.  It 
may  be  that  only  a  lower  limit  is  set  to  satisfy  the  notion  of 
penalty  and  to  guarantee  at  least  a  minimum  period  of  the 
punishment,  —  a  period  in  some  general  relation  to  the 
fixed-term  sentence.  It  has  also  been  suggested  to  combine 
the  two  and  permit  a  discharge  only  within  the  two  limits. 
It  is  also  possible  to  suppose,  —  and  this  would  be  more  in 
accord  with  the  logic  of  the  system  —  instead  of  a  maximum 
set  in  each  particular  case,  a  general  maximum  applicable 
to  the  punishment,  as  in  the  present  law  certain  crimes 
carry  a  maximum  penalty.  In  the  last  hypothesis  the  in- 
determinate sentence  comes  decidedly  nearer  to  our  actual 
fixed-term  sentences,  but  with  conditional  discharge;  yet 
there  remains  this  difference,  that  the  maximum  necessarily 
exceeds  the  normal  length  of  punishment  and  that  discharg- 
ing a  prisoner  brings  about  a  definite  liberation,  while  under 
the  conditional  release  the  punishment  continues  under  a 
system  of  virtual  freedom. 

If  we  were  to  make  an  attempt  to  introduce  indeterminate 
sentences,  it  should  be  done  under  this  modified  form.  It 
is  true  that  this  form  retains  the  disadvantage  that  the  pris- 
oner is  sure  of  his  release  at  a  set  time,  but  it  should  be  noted 
that  the  time  is  remote  and  that  he  retains  an  interest  in 
effecting  his  reform.  On  the  other  hand,  if  his  conduct  in- 
dicates his  classification  among  the  incorrigible,  he  may  be 
transferred  by  a  new  sentence  to  the  class  of  hopeless  cases 
and  undergo  a  protective  punishment. 

The  retention  of  the  conception  of  penalty  requires  that 
a  minimum  limit  of  incarceration  be  imposed.  Inasmuch 


§96]        ADMINISTRATIVE  INDIVTOUALIZATION         305 

as  such  minimum  limit  maintains  its  relation  to  the  term 
of  punishment  under  fixed  sentence,  it  follows  that  the  judge 
continues  to  apportion  the  punishment  to  the  criminality 
of  the  act,  and  that  the  principles  involved  in  the  concep- 
tions of  penalty  and  responsibility  are  safeguarded  quite 
as  much  as  in  the  present  system  of  conditional  release.  The 
system  of  indeterminate  sentence  has  the  distinct  advantage 
above  that  of  conditional  release  both  by  reason  of  the  dis- 
cipline it  imposes  and  by  the  more  favorable  condition 
attaching  to  the  prisoner  after  his  release;  and  especially 
because  of  its  power  in  cases  of  manifest  incorrigibility  to 
prolong  the  sentence  to  its  maximum  term. 

It  would  seem  that  the  French  adherents  of  the  principles 
of  penalty  and  responsibility  should  find  acceptable  a  plan  of 
indeterminate  sentence  under  this  form,  which '  provides  a 
minimum  limit  as  a  part  of  the  judicial  sentence,  or,  if  pref- 
erable, both  an  upper  and  a  lower  limit.  Indeed,  under 
this  form,  it  is  difficult  to  see  what  objections  in  principle 
could  be  raised  against  the  system.  Unquestionably,  it 
may  involve  serious  practical  difficulties  in  any  general 
scheme  of  application;  but  this  is  another  question  which 
in  conclusion  may  be  briefly  considered. 

§  96.  Difficulties  in  the  Extension  of  the  System 

Under  the  form  specified,  the  indeterminate  sentence  may 
be  widely  extended  with  due  consideration  of  the  objections 
and  without  entering  the  field  of  experiment.  It  is  applicable, 
for  example,  to  cases  of  commitment  to  educative  or  reform- 
atory institutions;  to  houses  of  correction  or  colonies  for 
minors,  asylums  for  the  treatment  of  neurotics,  workhouses, 
homes  for  inebriates.  For  all  these  the  suitability  of  the 
plan  is  conceded. 

In  cases  of  protective  punishments  the  system  seems  ac- 


306          INDIVIDUALIZATION  OF  PUNISHMENT       [§  96 

ceptable  as  a  corrective  of  a  possible  mistake  in  diagnosis. 
Consider  the  case  of  incorrigibles  who  are  definitely  to  be 
eliminated.  They  are  sentenced  for  life.  On  no  account 
should  a  prisoner  deported  to  a  penal  colony  be  eligible  to 
return  to  the  mother  country;  otherwise,  as  M.  Leveille  has 
well  said,  he  will  make  a  poor  colonist,  if  such  he  can  be 
called,  for  he  will  never  settle  in  a  permanent  way.  This 
applies  all  the  more  to  a  system  which  makes  such  life  in  a 
foreign  colony  a  premium  for  the  more  desirable  and  worthy, 
but  only  on  condition  that  those  thus  privileged  should 
become  true  colonists  and  pioneers.  They  are  given  their 
freedom,  accorded  privileges,  and  find  available  a  new  and 
more  independent  environment  ready  to  accept  persons  with 
a  blot  upon  then*  past,  but  upon  the  condition  that  this  be 
for  life  and  upon  a  definite  status.  This  is  well  enough;  but 
if  it  appears  that  a  mistake  has  been  made,  if  before  reach- 
ing the  period  of  deportation  to  the  colonies,  it  is  found 
that  the  case  is  capable  of  reform,  should  not  the  adminis- 
tration be  empowered  to  take  the  initiative,  not  necessarily 
for  a  revision  of  the  sentence  but  for  a  conversion  of  the 
punishment?  This  may  well  be  exceptional,  as  clemency 
now  is  for  the  deported,  but  still  this  exceptional  course 
should  not  be  excluded  by  the  law.  A  system  in  which  con- 
ditions are  not  set  in  advance  is  better  than  a  system  de- 
pending wholly  upon  administrative  clemency.1 

1  See  the  interesting  and  suggestive  study  of  M.  Andreas  Urbye,  "Les 
Sentences  indeterminees  dans  le  nouveau  projet  de  Code  penal  norvegien." 
(Revue  penale  suisse,  1898,  p.  71,  seq.)  In  it  is  described  the  first  attempt  at 
a  systematic  and  extended  organization  of  the  indeterminate  system.  It  is 
considered  as  the  necessary  consequence  of  a  system  of  subjective  classifi- 
cation, — at  all  events,  so  far  as  relates  to  punishments  designed  for  dangerous 
criminals;  and  in  the  Norwegian  draft  that  corresponds,  with  certain  im- 
portant differences,  to  what  we  call  incorrigibles.  What  I  have  just  said  on 
the  subject  of  indeterminate  sentences  applied  to  protective  punishments, 
was  already  written,  when  I  received  M.  Urbye's  study  in  the  Revue  suisse. 
It  wholly  confirms  the  opinions  I  expressed. 


§  96]     '  ADMINISTRATIVE  INDIVIDUALIZATION         307 

It  is  obvious  that  the  system  is  not  applicable  to  deterrent 
punishments,  since  they  apply  to  persons  who  stand  in  no 
need  of  reform.  In  regard  to  corrective  punishments  the 
situation  is  uncertain.  The  theory  is  admirable,  but  prac- 
tically it  is  the  administration  that  determines  the  sentence; 
so  that  the  procedure  is  one  of  administrative  regulation, 
although  the  court  is  called  upon  to  determine  the  release. 
The  extension  of  such  a  system  to  the  punishments  im- 
posed in  our  State  institutions  would  be  a  very  serious  mat- 
ter, if  not  wholly  impracticable  in  the  present  state  of 
affairs. 

It  has  been  thus  shown  that  the  system  involves  a  com- 
plex and  sensitive  treatment,  a  flexibility  of  individual  ap- 
plication. It  assumes  institutions  or  colonies  of  restricted 
capacity,  arranged,  as  at  Elmira,  upon  the  pattern  of  a 
manufactory  with  compulsory  residence;  or,  it  may  be,  with 
provisions  for  outside  work  during  the  day  under  the  super- 
intendence of  an  employer;  and  indeed  with  other  similar 
arrangements.  But  whether  such  a  system  is  possible  for 
the  great  mass  of  offenders  dealt  with  in  our  prisons  is  an- 
other question,  for  the  personality  of  the  officials  of  such 
institutions  must  be  considered.  We  concede  that  the 
higher  officials  of  the  prison  administration  are  in  every  way 
worthy.  M.  Coppee's  delineations  in  "La  Coupable"  must 
not  be  taken  too  literally.  Nevertheless  it  is  an  administra- 
tive staff  bound  together  through  its  routine  and  without 
habit  of  initiative,  or  authority  to  think  independently  or 
to  inaugurate  experiments.  Innovations  can  be  made  only 
by  way  of  general  regulations.  This  is  not  the  system  at 
Elmira.  It  would  be  difficult  to  introduce  a  similar  system 
for  the  majority  of  our  State  prisons;  even  in  America  this 
has  not  been  done. 

But  if  it  were  possible  in  France  in  connection  with  the 


308          JNDIVIDUALIZATION  OF  PUNISHMENT        [§97 

administrative  regulation  of  punishments  to  establish  an 
experimental  reformatory  institution  on  the  American  plan, 
in  which  affairs  are  entrusted  to  a  selected  staff,  governed 
by  a  man  of  initiative  and  original  ideas,  such  as  Mr.  Brock- 
way,  the  plan  would  find  general  and  enthusiastic  ap- 
proval. If  such  an  institution  were  established,  the  privilege 
would  readily  be  obtained  to  permit  the  courts,  as  in  New 
York  State,  to  choose  between  the  ordinary  commitment 
to  common-law  institutions  and  a  special  commitment  to  a 
reformatory  under  indeterminate  sentence.  This  would 
give  the  courts  an  additional  option,  —  something  between 
parole  at  the  time  of  sentence  and  the  common-law  com- 
mitment to  ordinary  penitentiaries.  If  the  experiment  is 
adjusted  to  our  conditions,  it  is  sure  to  be  extended.  Re- 
formatories will  be  multiplied,  and  we  shall  have  individ- 
ualization  of  punishment  brought  to  its  most  complete 
perfection.1 

§  97.   The  Personal  and  Religious  Factors  in  Reform 

The  religious  element  must  likewise  be  considered.  In 
America  the  religious  spirit  has  been  actively  maintained. 
It  serves  as  a  personal  incentive,  as  a  source  of  individual 
inspiration  and  fruitful  initiative.  To  create  missionaries 
for  the  work  of  social  regeneration,  conferring  upon  them  a 
humane  disposition  and  an  enthusiastic  faith  seems,  indeed, 
to  have  been  the  mission  of  the  Protestant  spirit.  This  per- 
sonal spirit  is  necessary  to  bring  about  such  a  movement  as 
that  at  Elmira,  and  equally  to  ensure  its  general  success  and 
to  accomplish  a  special  service  in  each  individual  case,  by 

1  The  following  references  may  be  added  to  the  bibliography  cited 
by  M.  L6vy  in  his  thesis,  cited  above,  on  "Les  Sentences  indeterminees " : 
Vargha,  cited  above,  II,  p.  506,  seq.,  and  Schmidt,  "Die  Aufgaben  der 
Strafrechtspflege"  (1895),  p.  290,  seq. 


§97]        ADMINISTRATIVE  INDIVIDUALIZATION         309 

stimulating  endeavor  and  a  regeneration  from  within  on  the 
part  of  these  unfortunates  tainted  by  crime,  who  are  never- 
theless candidates  for  re-entrance  into  life  under  new  auspices. 
All  such  reforms  are  the  work  of  personal  initiative  and  in- 
dividual character.  In  matters  of  moral  reform  such  initia- 
tive can  but  be  a  work  of  the  religious  life  in  the  large  sense 
of  the  word.  This  spirit  of  personal  influence  in  the  field 
of  the  religious  conscience  appears  at  the  present  time  to  be 
gaining  among  all  Christian  churches.  The  movement,  in 
America,  has  spread  even  to  the  inclusion  of  Catholicism. 
It  leaves  untouched  the  dogmas  of  the  Church  and  the  feel- 
ing of  inspiration  attaching  to  indemonstrable  truths,  yet,  in 
all  that  bears  upon  the  essentials  of  the  inner  life  and  the 
individual  attitude  thereto,  it  becomes  infused  with  a  re- 
generation of  that  spirit  of  high  aspiration  and  free  initia- 
tive which  characterized  the  faithful  in  mediaeval  times.1  In 
some  respects  we,  in  France,  may  have  the  same  opportunity 
to  further  free  initiative  in  religious  matters,  and,  what  is 
more  urgent,  to  facilitate  the  rebirth  of  a  personal  and  in- 
dividualized religious  life.  Such  a  confession  should  become, 
on  the  part  of  those  whose  moral  regeneration  is  to  be  effected, 
the  earnest  and  permanent  work  of  their  own  consciences, 
in  place  of  being,  as  is  too  commonly  the  case,  a  readily 
repeated  and  promptly  forgotten  lesson  imitatively  learned. 
When  this  spirit  shall  have  entered  such  of  our  reformatory 
institutions  as  may  then  properly  be  called  select,  it  will 
become  peculiarly  easy  to  reproduce  in  France  what  has 
been  accomplished  at  Elmira.  This  moral  factor  is  one 
which  each  may  appraise  as  he  prefers  in  terms  of  its  real 
nature,  but  whose  reformatory  value  no  criminologist  can 

1  See  particularly  the  "Vie  du  P.  Hecker,"  published  (in  translation) 
by  Lecoffre,  1897,  and  the  "Vie  du  cardinal  Manning,"  by  M.  de  PressensL 
See  also  my  review  of  Fogazzaro's  novel  "H  Santo,"  in  La  Quinzaine,  Febru- 
ary 1  and  15,  1906. 


310         INDIVTOUALIZATION  OF  PUNISHMENT        [§97 

afford  to  neglect,  for  there  can  be  no  more  powerful  lever 
for  the  reform  of  conscience  and  the  return  to  a  moral  atti- 
tude. The  Zweckstrafe,  which  considers  punishment  for  its 
future  benefit,  has  precisely  this  purpose. 

The  appeal  to  personal  initiative,  which  is  made  by  in- 
dividualization  and  other  social  measures  incorporated  in 
the  penal  regime,  is  at  length  becoming  the  watchword  for 
all  seriously  concerned  with  the  need  of  a  change  in  the 
public  attitude  towards  these  questions.  Without  exag- 
gerating the  analogy,  it  is  proper  to  recognize  that  between 
the  obligations  which  material  distress  imposes  upon  society 
and  those  due  to  moral  distress,  there  is  an  unmistakable 
resemblance,  at  all  events  in  the  resulting  conditions.  They 
are  the  shortcomings  of  humanity  in  general  and  of  our  civil- 
ization in  particular.  It  would  be  objectionable  to  hold 
that  distress  is  a  vice  of  those  afflicted  by  it,  for  it  is  equally 
a  vice  of  society.  This  is  true  of  poverty,  and  it  comes  near 
to  being  true  of  criminality.  Moral  and  material  wretched- 
ness so  commonly  associated  are  often  the  issues  of  one  an- 
other.1 The  present  tendency  is  to  relieve  material  poverty 
by  measures  of  true  individualization  and  personal  initia- 
tive; these  replace  administrative  and  even  sectarian  charity, 
which  is  but  a  charity  administered  by  rule,  apt  to  make 
paupers  instead  of  making  poverty  an  incidental  misfor- 
tune. Poverty  requires  the  aid  that  relieves  and  does  not 
encourage  the  condition  itself.  There  are  at  present  societies 
guided  by  this  spirit  of  individualization;  they  dispense 
with  any  regular  form  of  administering  charity  and  leave 
to  their  members  the  duty  of  assisting  the  poor  and  un- 
employed to  such  positions  as  they  are  capable  of  filling. 
They  do  this  through  personal  interest  and  through  the 

1  See  the  excellent  address  of  M .  I'abb6  Maurice  de  Baets,  "Les  Influences 
de  la  misere  sur  la  criminalite"  (Gand,  1895). 


§  97]        ADMINISTRATIVE  INDIVIDUALIZATION         311 

various  provisions  that  the  organization  of  their  work  places 
at  their  disposal.1 

The  provisions  for  relief  of  material  distress  must  be  ap- 
plied to  moral  distress;  and  in  place  of  punishment  admin- 
istered by  rule  and  with  an  invariable  uniformity,  we  ask 
for  a  system  of  individual  superintendence  through  which 
the  individual  initiative  may  be  appealed  to,  and  the  most 
suitable  measures  of  assistance  provided  for  each  case. 
There  are  many  offenders,  and  equally  many  of  the  un- 
fortunate poor,  whose  contact  with  crime  is  but  a  phase  of 
then*  existence,  who  pass  through  it  without  belonging  to 
it  body  and  soul.  They  experience  a  crisis  and  must  be 
helped  through  it.  In  this  service  punishment  should  be 
one  of  the  most  effective  measures.  It  must  be  wisely  util- 
ized, but,  to  be  thus  utilized,  there  should  be  no  conceal- 
ment of  the  need  of  repentance  and  expiation,  for  that  alone 
can  effect  a  revival  of  conscience.  If  the  interests  of  social 
protection  were  alone  considered,  convicts  might  be  treated 
like  hounded  animals  and  not  like  men;  but  that  is  not  the 
way  to  bring  about  their  reformation. 

Of  all  the  theories  proposed  as  a  basis  of  punishment,  to 
the  exposition  of  which  this  book  is  devoted,  this  last  seems 
the  only  one  likely  to  enlist  the  good  will  of  all  and  to  involve 
no  abandonment  of  principle. 

The  classic  system  will  be  acceptable  only  to  those  — 
and  they  are  few  in  number  —  who  hold  to  the  belief  in  free 
will  in  its  traditional  form.  The  extreme  position  of  the 
Italian  school  appeals  only  to  the  determinists  of  a  mate- 
rialistic trend.  This  irreconcilable  difference  of  view  will 

1  See  the  fine  address  of  M .  Jules  Lemaitre  at  the  general  meeting  of  Jan- 
uary 30,  1898,  of  the  "  Societ£  charitable  des  visiteurs  pour  le  relevement  des 
families  malheureuses  "  (in  Figaro.  January  31,  1898;  reprinted,  with  the 
report  of  M.  Bazin,  in  the  Bulletin  de  I' Union  pour  I' action  morale,  March  1, 
1898,  p.  411,  teq.). 


312         INDIVIDUALIZATION  OF  PUNISHMENT        [§  97 

continue.  If  the  problem  be  shifted  to  the  field  of  practical 
results,  while  still  holding  to  the  authority  of  the  principle 
of  responsibility,  a  common  ground  seems  available.  Re- 
sponsibility is  adhered  to,  but  it  involves  no  conclusion 
incompatible  with  the  conceptions  of  the  positivist  school; 
and  in  turn,  among  the  tenets  of  this  school,  there  is  none 
that  need  be  so  interpreted  as  to  be  opposed  to  the  idea  of 
responsibility.  The  difference  is  one  of  theory  and  belongs 
to  the  field  of  individual  opinions  and  convictions  of  con- 
science. In  either  case,  the  punishment  as  applied  and  in 
the  nature  of  its  discipline  will  be  the  same  and  similarly 
organized.  The  one  system  looks  upon  punishment  as  a 
penalty  directed  to  the  interest  of  social  defense,  and  the 
other  regards  it  wholly  as  a  measure  of  social  security;  but 
this  difference  will  not  affect  the  practical  measures  in  re- 
gard to  which  men  of  science  and  philanthropists  are  in  full 
accord.  This  is  substantially  the  point  of  view  and  the 
watchword  of  the  International  Union  of  Criminal  Law; 
and  it  has  been  the  purpose  of  this  book  to  set  forth  the 
evidence  of  its  worth.1 

•  1  Since  1898  the  system  of  indeterminate  sentences  has  stimulated  many 
discussions  and  publications,  in  addition  to  the  general  works  on  criminology 
and  penal  science  which  necessarily  consider  it;  notably  Prins,  "Science 
penale  et  droit  positif,"  pp.  453-460. 

We  mention  first  of  all,  especially  on  the  application  of  the  system  in 
America,  Teutsch,  "Methodes  penales  et  penitentiaires  des  Etats-Unis" 
(Revue  pSnitentiaire,  1905).  Articles  devoted  entirely  to  indeterminate 
sentences  are  (in  chronological  order),  Tarde  (Revue  penitentiaire,  1899), 
p.  1087;  Malpel,  "Essai  sur  la  mise  en  pratique  de  la  sentence  indetenninee  " 
(Thesis,  Toulouse,  1900) ;  Salomon  Rapoport,  "  Les  sentences  indeterminees  " 
(Revue  Internationale  de  sociologie,  Giard  et  Briere,  1904);  Gras,  "Des  sen- 
tences indeterminees"  (Thesis,  Paris,  1905);  Roux,  "Les  sentences  inde- 
terminees et  1'idee  de  justice"  (Revue  penitentiaire,  1905),  p.  3.660. 

At  the  International  Prison  Congress  held  at  Washington,  in  October, 
1910,  the  First  Section  formally  voted  to  "approve  the  scientific  principle 
of  the  indeterminate  sentence."  This  was  the  first  occasion  on  which  an  In- 
ternational Congress  had  given  such  approval,  and  demonstrates  the  prog- 
ress of  thought  on  this  subject.  —  ED. 


§97]        ADMINISTRATIVE  INDIVIDUALIZATION         313 

One  may  say  that  the  general  tendency  nowadays  is  to  discard  the  abso- 
lute indeterminateness  of  the  sentence  by  reason  of  its  possible  encroach- 
ment of  personal  liberty  through  the  autocracy  of  the  administration.  A 
relative  indetenninateness  is  preferred,  that  is,  the  fixation  by  law  and  the 
judge  of  a  minimum  and  a  maximum  sentence.  This  system  of  relative 
indeterminateness  has  been  legally  authorized  by  the  Norwegian  penal 
code.  According  to  the  terms  of  Article  65  of  that  code,  when  a  person  is 
guilty  of  one  of  several  crimes  which  the  law  specifies,  "the  court  may  put 
to  the  jury  the  question  of  determining  whether  the  author  of  these  acts, 
by  reason  of  the  nature  of  the  crime,  of  the  motives  which  have  directed  it, 
of  the  impulses  which  it  discloses,  may  be  considered  as  peculiarly  harmful 
to  society  or  to  the  life,  health,  and  welfare  of  particular  persons."  In  case 
of  an  affirmative,  the  sentence  may  specify,  at  the  expiration  of  the  punish- 
ment, a  supplementary  detention  which  must  not  exceed  the  three-fold 
period  of  the  punishment,  or  in  any  case  be  more  than  fifteen  years.  (For 
a  critical  opinion  of  Art.  65,  see  the  preface  of  M .  Gorgon,  p.  xviii.) 

For  the  points  of  resemblance  between  indeterminate  and  alternative 
sentences,  such  as  obtain  in  England,  see  the  final  note  of  the  preceding 
chapter,  p.  293,  note. 

To  return  to  disciplines  applicable  to  individuals  undergoing  reforma- 
tory punishment  in  appropriate  institutions,  it  seems  likely  that  there  will 
be  established  experimentally  and  for  certain  types  of  offenders,  what  may 
be  called  an  out-door  prison,  which  is  to  serve  as  a  gradation  between  im- 
prisonment and  freedom  under  surveillance.  For  one  of  the  greatest  dis- 
advantages even  of  a  short-term  detention  is  that  it  takes  a  man  away  from 
his  work,  and  consequently  from  his  source  of  livelihood.  And  in  another 
respect  this  is  a  most  unequal  punishment,  because  in  the  case  of  those  who 
have  a  manual  trade  or  who  practice  an  industrial  or  commercial  vocation, 
it  often  amounts  to  ruin;  while  it  has  no  effect  at  all  upon  those  who  have  a 
sufficient  fortune  not  to  be  dependent  upon  a  lucrative  calling.  Would  it 
not  be  possible  to  permit  these  persons  to  exercise  their  vocation  with  noth- 
ing to  mark  them  off  from  their  companions  except  the  requirement  to  re- 
turn to  the  institution  at  evening  ?  The  experiment  would  carry  a  more 
general  advantage,  namely,  that  of  accustoming  their  employers,  and  as  well 
their  fellow-employees,  respectively  to  employ  and  to  be  considerate  to  those 
who  have  served  a  sentence  for  an  accidental  transgression. 


INDEX 


INDEX 


[REFERENCES  ABE  TO  PAGES] 


Adickes,  Erich,  180  n. 

Alienation,  see  Crime  and  abnormal 

condition. 

Alimena,  69  n.,  125  n.,  165  n.,  223  n. 
Ancyrus,  Council  of,  201. 
Anderson,  Sir  Robert,  19  n.,  34  n., 

136  n. 

Andreades,  293  n. 
Aquinas,  Thomas,  40  n.  2,  66  n.  2. 
Aschrott,  110  n.,  214  n.  1. 
Aubry,  Octave,  114  n.,  215  n. 

B 

Bachem,  218  n. 

Baer,  130  n. 

Baets,  Maurice  de,  310  n. 

Balfour,  179  n.  2. 

Ballet,  Gilbert,  ii  n.,  vi  n.,  98  n. 

Ballv6,  Antoine,  136  n. 

Bartmann,  36  n.  1. 

Batardy,  284  n. 

Bazin,  311  n. 

Beaudouin,  24  n.  4,  27  n.  2. 

Beccaria,  52,  100. 

Bentham,  52. 

Be>enger,  Law  of,  see  Law. 

Bernhoft,  24  n.  3. 

Binding,  49  n. 

Birkmeyer,  138  n.  3. 

Blondel,  Maurice,  173  n.,  179  n.  2. 

Borstal  System,  286  n. 

Boudinhon,  A.,  199  n.  2. 

Bouton,  R.,  201  n.  2. 

Briand,  96  n. 

Brockway,  299,  300,  301,  308. 

Brunetiere,  179  n.  2. 

Brunner,  24  n.  3,  27  n.  1,  32  n.  1. 

Bufnoir,  vi,  viii,  be,  xii  n. 


Calvin,  36  n.  2. 

Carnevale,  E.,  125  n.,  126  n.,  227  n.  1. 

Carrara,  100. 


Cathrein,  152  n. 
Chiaroni,  215  n. 
Circumstances, 

extenuating,  see  Extenuation. 

of  crime,  see  Crime,  circum- 
stances of. 

Classic  School,  see  School,  Classic. 
Clement  XI,  Pope,  203  n.  3. 
Coconnier,  P.,  172  n.  2. 
Colajanni,  132  n.,  278  n. 
Complicity,  see  Crime,  complicity 

in. 

Comte,  xi. 
Conti,  Ugo,  62  n.,  256  n.,  257  n., 

278  n. 
Contingent    liability,   see    Crime, 

contingent. 
Coppe"e,  307. 
Coulanges,  Fustel  de,  24  n.  3. 

27  n.  2. 
Crime, 

and  abnormal  condition,  77-79, 
80-82,  142,  143. 

and  criminology,  84. 

and  pathology,  4. 

and  punishment,  13,  117,  120, 
193. 

and  sin,  33,  197,  198. 

and  society,  13,  186,  187. 

and  sociology,  4. 

as  symptom,  117,  133. 

circumstances  of,    see   Crime, 
objective. 

complicity  in,  221,  225. 

contingent,  221, 263, 263  n.  1, 3. 

classic  conception  of,  7. 

factors  of,  102,  279. 

materiality  of,  5. 

objective,  5,  31-33,  46,  47,  186, 
187. 

of  passion,  256-258. 

political,  205,  253-256. 

subjective.  31,  33,  84,  205. 
Criminal  and  Criminality, 

accidental,  271. 

and  premeoitation,  69. 


317 


318 


INDEX 


Criminal  and  Criminality  —  Cont. 

as  abnormal,  83,  130,  131. 

as  alien,  94,  155-157,  268. 

confirmed,  103,  207. 

diagnosis  of,  127-132,  133,  296, 
297. 

dynamic  and  static,  276-278. 

making  of,  104-106,  121,  148- 
149,  216,  217,  310,  311. 

prevention  of,  123. 

promiscuity  of,  106,  112. 

protection  against,  123. 

reform  of,  131,  287,  289. 

subjective  aspect  of,  45. 

types  of,    118-122,    127,    128, 

144,  270-274,  278-282. 
Crisenoy,  de,  283  n. 
Crofton,  Walter,  110. 
Cruppi,  228  n. 

Cuche,  xii,  17  n.,  18  n.,  136  n.,  181  n. 
Curel,  de,  154  n. 

D 

Dantec,  Felix  le,  169  n.  1. 

Delaquis,  Ernest,  v. 

Deportation,    see   Punishment,    as 

deportation;  Individualization. 
Desdouits,  179  n.  1. 
Desjardins,  Albert,  129  n. 
Desjardins,  Paul,  231  n. 
Determinism,  57,  67,  151, 177-179. 
Dobresco,  156  n.  1. 
Dostoiewsky,  130  n.,  213  n.  2,  254. 
Dubois,  ii  n.,  vi  n. 
Durkheim,  20  n.,  24  n.  1. 
Duval,  Raoul,  42  n.,  221  n.  1. 

E 

Ecclesiastical  law,  see  Law,  ecclesi- 
astical. 

Eliot,  George,  88  n. 

Elmira  system,  298-301. 

Encyclopedists,  53. 

Engelmann,  35  n.  1,  40  n.  1. 

Esmein,  20  n.,  27  n.  1,  51  n. 

Extenuation  of  circumstances.  58, 
76,  79,  82. 

Eycken,  Paul  van  der,  19  n. 


Ferri,  102,  102  n.,  103,  116,  136  n., 

278  n. 

Ferriani,  L.,  130  n. 
Feuerbach,  52. 


Flandin,  Etienne,  283  n.  2. 

Fogazarro,  309  n. 

Fonsegrive,  40  n.  2,  66  n.  1,  175  n., 

179  n.  1. 

Fouillee,  xiii,  67,  105  n.,  175  n. 
France,  50,  51. 

Franck,  Reinhard,  19  n.,  98  n.,  136  n. 
Frassati,  129  n. 
Fredus,  27,  28. 
Freedom,    see   Responsibility   and 

freedom. 

Free  Will,  64,  175-177,  197,  198. 
analysis  of,  65-67,  170-172. 
conditions  of,  71,  72,  85,  178. 
see  also  Punishment;  Responsi- 
bility and  freedom. 
French  Empire,  50. 
French  Revolution,  50,  54. 
Frins,  P.,  179  n.  1,  199  n.  1. 
Fulliquet,  139  n. 
Fustel  de  Coulanges,  see  Coulanges. 

G 

Garcon,  iv,  v,  19  n.,  62  n.,  98  n., 

223  n.,  254  n.,  259,  293  n.,  312  n. 
Garofalo,    102,    135,   242,   278  n., 

280  n. 
Garraud,  v,  19  n.,  62  n.,  139  n.,  169 

n.  2,  221  n.  3. 
Gauckler,  136  n. 
Gautier,  Alfred,  274  n.  1. 
G6ny,  19  n. 
Giddings,  157  n. 
Glasson,  27  n.  1. 
Gospel,  see  St.  John,  St.  Luke,  St. 

Mark,  St.  Matthew,  St.  Paul. 
Granier,  129  n. 
Gras,  312  n. 
Grasset,  ii,  98  n.,  181  n. 
Gretener,  78  n.,  143  n. 
Gumplowicz,  28  n.  2,  157  n.,  164  n. 
Gunther,  30  n.,  35  n.  1,  203  n.  2. 
Guyho,  Corentin,  96  n.,  126. 


Hamel,  van,  144  n. 
Haracourt,  38  n. 
Hatzfeld,  36  n.  2. 
Hecker,  309  n. 
Hefele,  201  n.  1. 
Hinschius,  35  n.  1,  203  n.  2. 
Historical  School,  see  School,  His- 
torical. 

Holtzendorff,  223  n.,  238  n.  1. 
Hymans,  Paul,  213  n.  2. 


INDEX 


319 


Ihering,  49  n. 
Imbert,  46  n. 
Individualization, 

administrative,  12,  294  n.,  295 

seq. 
and   responsibility,    183,   272, 

276. 

and  the  jury,  95-97,  232-236. 
in  deportation,  206-209. 
in  political  crime,  253-256;  see 

also  Crime,  political, 
judicial,  12,  48,  50,  223,  227- 

230,  237  seq.,  293  n. 
legal,  12,  220  seq.,  262-266. 
moral  aspects  of,  192-195. 
of  the  Italian  School,  119. 
principles  of,  260-262. 

types  of  (including  false),  11, 
12,  44-47,  220,  223-226,  235, 
237-239,  298,  303. 
Infamy,  see  Punishment   and  in- 
famy. 

Infanticide,  200,  201,  223. 
Ingegnieros,  Jos6,  136  n. 
Insanity  and  crime,  see  Crime  and 

abnormal  condition. 
Intimidation,  see  Punishment,  de- 
terrent. 
Irresponsibility,  see  Responsibility 

and  irresponsibility. 
Italian  School,  see  School,  Italian. 


Jansen,  36  n.  2. 

Joly,  Henry,  62  n.,  105  n.,  130  n. 

Jousse,  46  n. 

Judge, 

discretion  of,  57,  227-229. 

education  of,  231. 

functions  of,  47,  48. 
Julhiet,  Ed.,  294  n. 
Jury. 

history  of,  11. 

hi  individualization,  232-236. 

attitude  of,  10,  11,  93-95. 

special  types  of,  233. 


Keller,  174  n.  1. 
Kohler,  30  n. 
Kovalevsky,  24  n.  3. 
Kraus,  239  n.,  249  n. 
Krohne,  111  n. 


Laberthonniere,  P.,  179  n.  2. 
Law 

and  minors,  76,  294  n. 

and  social  protection,  etc.,  see 

Social,  etc. 
Berenger,  xvi,   195,  212,  213, 

216,  217,  229,  288. 
ecclesiastical,  191,  192. 
French,  of  1854,  110. 
of  1875,  113,  211. 
of  1885,  17,  223,  286. 
of  1891,  210,  212. 
Germanic,  24,  199. 
responsibility  in,  39-42. 
Roman,  27. 

Salic,  26,  34,  54,  55,  199. 
Lea,  Henry  C.,  199  n.  2. 
Legrand,  69  n.,  98  n.,  223  n.,  239  n. 
Lemaitre,  Jules,  311  n. 
Le  Play,  xi. 
Le  Poittevin,  A.,  iv,  62  n.,  98  n., 

216  n.,  292  n. 
Leredu,  98  n. 
Leveille,  62  n.,  Ill  n.,  113,  208  n., 

260,  306. 

Levy,  Frederic,  299  n.,  301,  308  n. 
L6vy-Bruhl,  175  n.,  179  n.  1. 
Liepmann,  53  n. 
Lippert,  24  n.  3. 

Liszt,  von,  9  n.,  49  n.,  56,  87,  98  n., 
129  n.,  136  n.,  137,  138,  138 
n.   1,  2,   139  n.,   141  n.   1, 
142  n.,  147  n.,  150,  165  n., 
184,  218  n.,  219  n.,  221  n.  1, 
239  n.,  245  n.,  278  n. 
Theory  of  Rechtsgiiter,  49. 
Loffier,  30  n.,  32  n.  1,  3,  35  n.  1, 

41  n.  1,  165  n. 
Lombard,  Peter,  66  n.  2. 
Lombroso,  19  n.,  101  n.,  102,  103, 
103  n.,  116,  118,  122,  127,  128, 
129,  130,  132,  137,  275,  284. 
Louis  XIV,  edict  of,  48. 
Lucchini,  129  n. 
Luther,  36  n.  2. 

M 

Mabille,  G.,  181  n. 
Magistrate,  see  Judge. 
Makarawicz,  4  n.,  16  n.  3. 
Mallieux,  19  n. 
Malpel,  312  n. 
Mancini,  257. 
Manning,  309  n. 
Marx,  Karl,  xi. 


320 


INDEX 


Maudsley,  143  n. 

Merkel,  16  n.  2,  35  n.  2,  160  n.,  172 

n.  1. 

Meynial,  19  n. 

Minors,  see  Law  and  minors. 
Mitigation,  see  Extenuation. 
Mittlestadt,  16  n.  2,  213  n.  1. 
Molinists,  40  n.  2. 
Montgomery,  H.  J.  B.,  136  n.,  145 

n.  1,  213  n.  2,  300  n. 
Mprality;   see   Punishment,   moral 

issues  in. 

Moriaud,  Paul,  xii,  85  n. 
Morin,  Gaston,  iv. 
Morlot,  Emile,  219  n. 
Morrison,  130  n. 
Motive,  224,  239-253,  264;  see  also 

Responsibility,  moral  nature  of. 
Mumm,  214  n.  1. 
Muyart  de  Vouglans,  153. 

N 

Neret,  98  n. 

Normality,    see    Punishment    and 
normality. 

O 

Offender  and  offense, 

first,  59;  see  also  Recidivist. 
Olshausen,  259  n. 
Oppenheim,  214  n.  2. 
Ortolan,  62  n. 


Pardon,  see  Parole  and  Pardon. 
Parole  and  Pardon,  192,  204,  212- 
214,  215-218,  219  n.,  229,  230, 
289. 

Payot,  179  n.  2. 
Pellizari,  37  n. 
Penal  Code, 

Austrian,  80. 
Dutch,  186,  227  n.  2. 
French,  6  n.,  10, 18,  76,  79,  203. 
of  1810,  xiv,  56-58,  73,  74, 

182,  183. 
of  1791,  54. 
German,  80,  259. 
Italian,  6,  7  n.,  80,  100,  101, 

224  n.,  256-260,  262. 
Norwegian,  19  n.,  293  n.,  313. 
Swiss,  78  n.,  146  n.,  222  n. 
Penalty,  see  Punishment. 
Penance,  198,  199-203. 
Penitentials,  199,  199  n.  2. 
Penology,  see  Crime;  also  School. 


Personality,  see  Responsibility  and 

personality. 
Picard,  L.,  196  n.  1. 
Post,  24  n.  3. 

Premeditation,  68,  69,  72,  223  n. 
Pressens6,  de,  309  n. 
Prins,  18  n.,  132  n.,  177  n.,  312  n. 
Progressive    system,    see    Punish- 
ment, progressive  system. 
Promiscuity,     see     Criminal     and 

Criminality,  promiscuity  of. 
Punishment, 

and  free  will,  179-181, 188, 189, 

212;  see  also  Responsibility. 

and  infamy,  206,  255,  267-269, 

269  n. 
and  motive,  247-251;  see  also 

Motive, 
and  normality,   140-144,   162, 

163,  164. 
as  deportation,  110,  204,  206- 

209,  258,  292,  306. 
as  expiation,  29,  37-39. 
as  private  vengeance,  21. 
as  reparation,  59-61. 
as  risk  incurred,  33,  190. 
as  solitary  confinement,    109, 

113,  211,  283. 
as  Wergild,  see  Wergild. 
conception  of,  187-189. 
degrees  of,  187,  238,  275. 
deterrent,   125,   126,   145-147, 
165  n.,  208,  270,  271,  284, 
285,  288,  290. 

divine,  see  Punishment  as  ex- 
piation, 
equality  of,   see   Punishment, 

uniform. 

exemption  from,  83. 
indeterminate,    298-301,   301- 

305,  312  n. 

in  the  primitive  clan,  25,  26. 
long-term  and  short-term,  109, 

209  seq. 

mitigation    of,    201,    224-226, 
257-259;  see  also  Extenua- 
tion, 
moral  issues  in,  139,  193-195, 

213,  251-253,  268,  309. 
parallel,  259,  262,  265-268,  271, 

273. 
preventive,    see    Punishment, 

deterrent. 

private  and  public,  28. 
progressive  system,  110,  291. 
purpose  of,  116-118,  195,  218. 
reformatory,  194,  270,  291,  307. 
special,  263-266,  283,  285. 


INDEX 


321 


Punishment  —  Cont. 

uniform,  59,  61,  112,  261,  262. 

variable  between  limits,  58. 
Puybaraud,  130  n. 

R 

Rapoport,  Salomon,  312  n. 
Rechtsgiiter,  49;  see  Liszt. 
Recidivist,  see  Criminal  and  Crim- 
inality. 

Relegation,  see  Punishment  as  de- 
portation. 

Reparation,  see  Punishment  as  rep- 
aration. 
Responsibility, 

and  crime,  xiv,  xvi,  33,  75. 
and  freedom,  56,  96,  166,  168- 
172;    see    also    Free   Will; 
Punishment. 

and  irresponsibility,  77-79. 
and    moral    nature,    159-162, 

164,  191,  192. 
and  normality,  see  Punishment 

and  normality. 
and  personality,  173,  174. 
and  punishment,  see  Respon- 
sibility and  crime, 
and  reason,  158,  159. 
and  will,  43. 
conception  of,  35,  87. 

in  Christianity,  35-37,  55, 

191,  192. 

degrees  of,  81,  82,  168. 
individualization  and,  see  In- 
dividualization. 
in  ecclesiastical  law,  see  Law, 

ecclesiastical, 
partial,  142,  226. 
practical,  158-160. 
remote  and  immediate,  87-90. 
Richard,  Pierre,Illl  n. 
Rigaud,  223  n.,  239  n.,  254  n. 
Riviere,  L.,  274  n.  2. 
Rossi,  62  n.,  100,  103. 
Rostand,  Eugene,  105  n. 
Rousseau,  20,  52,  53,  53  n.,  54. 
Rousseau  de  la  Combe,  153. 
Roux,  141  n.  1,  312  n. 

S 

Sabatier,  A.,  36  n.  1,  174  n.  2. 

Sacharoff,  C.,  219  n. 

Salic  Law,  see  Law,  Salic. 

Schmidt,  308  n. 

Schmitz,  199  n.  2,  201  n.  1,  3. 


Schofield,  Henry,  255  n. 
Scholastics,  39,  44. 
School, 

Classic,  51,  52  seq.,  114. 

Historical,  51. 

Italian,  16,  99  seq.,  115,  119, 

132,  134,  135,  150. 
and  individualization,  see 
Individualization  of  the 
Italian  School. 

Neo-Classic,  63  seq. 

"Third  Italian,"  125. 
Schroder,  30  n. 
Schwinderem,  van,  26  n. 
Seigneux,  de,  96  n. 
Sentence,  see  Punishment. 
Sieves,  116. 

Sighele,  102,  156  n.  2,  267  n. 
Sin,  see  Crime. 
Social, 

interests,  49,  189. 

in  punishment,  89,  90,  219. 

regulation,  73. 

responsibility,  90-93,  155,  156, 
185,  186;  see  also  Sociology. 
Sociology, 

purpose  of,   2,    115;  see  also 
Crime  and  sociology;  Social. 
Sohm,  22  n.,  27  n.  1. 
Speyr,  D.  von,  83  n. 
Stammler,  174  n.  1. 
St.  Augustine,  36  n.  2. 
St.  Bernard,  40  n.  2,  197  n.  2. 
St.  John,  197  n.  1,  198  n.  1,  2. 
St.  Luke,  35  n.  2, 198  n.  1,  2. 
St.  Mark,  196  n.  2,  198  n.  1. 
St.  Matthew,  35  n.  2,  198  n.  1,  2. 
St.  Paul,  36  n.  1, 195  n.,  198  n.  3,  4. 
Sternau,  303  n. 
Stooss,  87  n.,  142  n.,  145  n.  2, 146  n., 

224,  253  n. 
Sumien,  81  n. 


Tacitus,  24  n.  2. 

Taine,  50  n. 

Tarde,  Gabriel,  v,  vi,  ix,  xi  n.,  2  n., 
16  n.  1,  28  n.  1,   102,  126, 
130  n.,  136  n.,  148  n.,  155, 
156,  185,  278  n.,  312  n. 
Introduction  by,  xi,  xvii. 

Temibilita,  69,  117,  150. 

Teutsch,  312  n. 

Thaller,  iv. 

Thibierge,  221  n.  2. 

Thonissen,  30  n. 


322 


INDEX 


U 
Urbye,  Andreas,  287  n.  2,  306  n. 


Vagrant  and  Vagabond,  283. 
Vargha,  125  n.,  134  n.  1,  203  n.  1, 

213  n.  1,  308  n. 
Vence,  C.  de,  227  n.  1. 
Vergeltungsstrafe,  5,  8,  9. 
Vidal,  129  n.,  293  n. 
Viollet,  27  n.  1,  199  n.  2. 
Volition,    see    Responsibility    and 

will. 


W 

Wahlberg,   39  n.,  86  n.,  134  n.  2, 

278  n. 
Wergild,  23-27,  30  n.,  31,  33,  190, 

199. 

Wernle,  36  n.  1. 
Will,  see  Responsibility  and  will. 


Wills,  Sir  Alfred,  136  n.,  286  n. 

Z 

Zurcher,  78  n. 
Zweckstrafe,  8,  9,  310. 


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